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https://www.courtlistener.com/api/rest/v3/opinions/1519617/	118 N.H. 222 (1978) THE STATE OF NEW HAMPSHIRE (by CITY OF ROCHESTER) v. GEORGE E. DRISCOLL No. 7887. Supreme Court of New Hampshire. April 7, 1978. 223 Fisher, Parsons, Moran & Temple, of Dover (Harold D. Moran orally), for the city of Rochester. Michael & Jones, of Rochester (Franklin C. Jones orally), for the defendant. BOIS, J. This appeal centers on whether that part of chapter XVI of the Rochester city ordinance regulating the use of ambulance sirens is valid. The defendant was tried and convicted by the district court of operating an ambulance siren in the city of Rochester in violation of the ordinance. The defendant seasonably excepted to the denial of his motion to dismiss. All questions of law raised by this and other exceptions were reserved and transferred by Cooper, J. We hold that, to the extent the ordinance in question attempts to regulate and restrict the use of ambulance sirens on emergency vehicles, it is invalid. The defendant's exception to the denial of the motion to dismiss is sustained and his conviction reversed. On June 30, 1977, the defendant, chief of the Sanford, Maine, Fire Department, received an emergency call from the Rochester Fire Department requesting the defendant to transport an automobile accident victim from Lebanon, Maine, to Frisbie Memorial Hospital in Rochester. While responding to the call and driving his rescue/ambulance vehicle through downtown Rochester en route to the hospital, the defendant sounded the vehicle's siren. He was arrested for doing so. We note that prior to this incident the defendant had been warned that section 38(a) of chapter XVI of the ordinance forbade the use of all but high-low pitch electronic sirens on emergency vehicles in the compact area of the city. He had also been advised to use an alternative route to avoid the compact portion of the city. Driscoll, admittedly on an emergency run, was intent on testing the validity of the ordinance. In pertinent part, chapter XVI of the Rochester City Ordinances provides: Section 36: No person shall operate any vehicle on any street so as to make any loud, unusual or other unnecessary noise as hereinafter defined in Section 38 of this chapter..... 224 Section 37: No person shall operate any vehicle in the compact portion of the City of Rochester so as to make any loud, unusual or other unnecessary noise as hereinafter defined in Section 38 of this Chapter. Section 38: Definitions (a) The word "vehicle" shall include bus, highway building equipment, motorcycle, motor truck, motor vehicle, semi-trailer, sidecar, tractor, trailer or ambulance, fire truck, including but not restricted to any motor vehicle operated by or under the control of a regular or volunteer fireman or police officer. FURTHER, meaning and intending that no sirens as presently used on mobile emergency apparatus shall be used in the City of Rochester on any vehicle for any purpose. [1,2] We hold that because the legislature has undertaken the regulation of emergency vehicle sirens in several ways, it has clearly manifested an intent to preempt the field. See Lavallee v. Britt, 118 N.H. 131, 383 A.2d 709 (1978); Dover News, Inc. v. Dover, 117 N.H. 1066, 381 A.2d 752 (1977); State v. Hutchins, 117 N.H. 924, 380 A.2d 257 (1977). So far as sections 36-38 of chapter XVI of the city ordinance curb the uses of sirens on mobile emergency apparatus, they are invalid. [3,4] There is no question but that under the police power, a municipality can regulate or prohibit noises which may affect the public health or welfare." 56 Am. Jur. 2d Municipal Corporations, Counties and Other Political Subdivisions § 470 (1971). City councils are empowered by RSA 47:17 XV to enact bylaws and ordinances for the well being of their cities. Such power, however, is not unlimited; local legislation must not be inconsistent with State law. Lavallee v. Britt, 118 N.H. 131, 383 A.2d 709 (1978); Dover News, Inc. v. City of Dover, 117 N.H. 1066, 381 A.2d 752 (1977); State v. Boisvert, 117 N.H. 291, 371 A.2d 1182 (1977); State v. Paille, 90 N.H. 347, 9 A.2d 663 (1939); RSA 47:17 XV. [5] Local legislation is repugnant to State law when an ordinance or bylaw either expressly contradicts a statute, e.g., State v. Jenkins, 102 N.H. 545, 162 A.2d 613 (1960); State v. Angelo, 71 N.H. 224, 51 A. 905 (1902), or else runs counter to the legislative intent underlying a statutory scheme, e.g., Dover News, Inc. v. City of Dover supra; State v. Boisvert supra; State v. Paille supra. 225 [6] One statute preempting the ordinance in question is RSA ch. 151-B (Supp. 1975), which creates an emergency medical service coordinating board. To fulfill the statutory purpose of facilitating the transportation of the injured or sick "in the shortest practical time" and "in proper equipment," RSA 151-B:1 I, II (Supp. 1975), the legislature empowered the board to set standards to be met by cooperating groups throughout the State. RSA 151-B:3, :4 (Supp. 1975). The board is authorized to establish minimum standards for, inter alia, "vehicles" and "equipment for vehicles." RSA 151-B:4 III(b), (c) (Supp. 1975). Section 12 of the chapter provides that: Subject to the approval of the emergency medical service coordinating board, the director of the division of public health shall issue regulations to govern the standards of suitability of ambulances for the transportation of patients from the standpoint of . . . safety [and] ambulance markings. . . . The practical effect of the Rochester ordinance would be to displace the statutory authority of the board and of the division of public health to determine, which, if any, types of ambulance sirens are necessary. RSA ch. 151-B (Supp. 1975) evidences the legislature's intent to make uniform State law regarding ambulance sirens. [7] Another type of uniformity sought by the legislature is nationwide uniformity of motor vehicle law. In both RSA ch. 263-B and RSA 262-A:7, which we hold also preempt the ordinance, the legislature has enacted variations of interstate compacts, designed to conform New Hampshire law to that of other participating States. RSA ch. 263-B, the vehicle equipment safety compact, was enacted in part to "[p] romote uniformity in regulation of and standards for [vehicular] equipment." RSA 263-B:1(b)(1). The vehicle equipment safety commission, composed of one commissioner from each party State, is empowered to issue rules, regulations, and codes based on its study of "the need for or desirability of the establishment of or changes in performance requirements or restrictions for any item of equipment. . . ." RSA 263-B:5(a). The legislature granted this power because it found that "[t] he public safety further requires that such [equipment] standards and requirements be uniform from jurisdiction to jurisdiction, except to the extent that specific and compelling evidence supports variation." RSA 263-B:11 II. Obviously, the legislative intent underlying this statute would be frustrated if municipalities could enact their own varying laws about the types of sirens permitted to be used on emergency vehicles. 226 The State likewise exercised its jurisdiction over emergency vehicles in enacting RSA 262-A:7, part of the Uniform Vehicle Code (an interstate compact). This statute directs that: A person operating an emergency vehicle, as defined in Chapter 259, shall not use the siren or flashing light, as approved by the director of motor vehicles, except when such vehicle is being operated in response to an emergency call. . . . (Emphasis added.) Under this statute, the State director of motor vehicles is the person vested with discretion to regulate the use of ambulance sirens. Here, also, the statutory scheme contemplates that the use of sirens be regulated and controlled at the State level. [8] We sympathize with the purpose of the ordinance, i.e., reduction of noise in the city. The State, however, has authoritatively acted to control the use of sirens on emergency vehicles, and has thereby preempted the field. Ample statutory authority exists for the plaintiff city to abate noise by emergency vehicles when those vehicles are not responding to emergency calls. RSA 47:17; see RSA 262-A:7. In view of our holding we need not reach the other issues raised by the defendant. Exceptions sustained; remanded. LAMPRON, J., did not sit; the others concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519618/	646 S.W.2d 557 (1982) Samuel Joel SEEK, Appellant, v. The STATE of Texas, Appellee. No. 01-81-0828-CR. Court of Appeals of Texas, Houston (1st Dist.). December 23, 1982. 558 Ray Epps, Houston, for appellant. Alvin Titus, Houston, for appellee. Before EVANS, C.J., and JACK SMITH and DUGGAN, JJ. OPINION EVANS, Chief Justice. A jury convicted the appellant of aggravated rape and assessed his punishment at five years imprisonment. The judgment is affirmed. The appellant was indicted for the offense of aggravated rape under § 21.03 of the Texas Penal Code, which provides, (a) A person commits an offense if he commits rape as defined in § 21.02 of this code ... and he: (1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or (2) by acts, words, or deeds places the victim in fear of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone ... (3) by acts, words, or deeds occurring in the presence of the victim threatens to cause death, serious bodily injury, or kidnapping to be inflicted on anyone; or (4) uses or exhibits a deadly weapon in the course of the same criminal episode.... Section 1.07(a)(34) of the Penal Code defines the term "serious bodily injury" as meaning "... injury that creates a substantial risk of death or that causes death, serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." 559 In his first ground of error the appellant contends that the evidence is insufficient to support his conviction for aggravated rape, arguing that the State failed to prove that by acts, words, or deeds, he placed the complainant in fear of serious bodily injury or death. Because the sufficiency of the evidence is challenged, we will discuss the facts in some detail. The complaining witness, a former girlfriend of appellant's brother-in-law, had been living as a guest in the appellant's home for about three months at the time of the incident. She was sharing a bedroom with the appellant's children. At the time of the incident, the air conditioning at appellant's home was out of order, so to escape the heat, appellant and his family were staying temporarily at the home of his wife's parents. The complainant, however, remained at the appellant's house. The offense occurred sometime after midnight on September 3, 1981. The previous day, appellant had worked at his father-in-law's air conditioning and plumbing company, and beginning about 2:00 p.m. he and his co-workers started drinking beer. By the time he reached his father-in-law's house that evening, appellant had had about twelve cans of beer. When he arrived at the house, he and his wife argued about his drinking, and as a result she refused to go to a scheduled dance lesson. This upset the appellant and he left, saying he was going to the lesson alone. On his way home to shower and change, the appellant bought another six pack of beer. After cleaning up, he went to a club, but finding none of his friends, he went to another club where he began drinking mixed drinks. According to his testimony, the last thing he remembers about that night was leaving the club, dropping his hat and someone commenting, "man, you look bad," or "can you make it?". He claimed to remember nothing else until he awoke the next morning at his in-law's house in bed with his wife and two children. The appellant's wife testified that when the appellant returned to his in-law's house about midnight, they had again argued over his drinking. After he had been there twenty or thirty minutes, he left with his five-year old daughter, saying that he was going home. The appellant's wife testified that when he got home, he called her three times in about thirty minutes asking her to come home, but each time she refused, saying it was too hot. The complainant testified that she had gone to bed between 10:00 and 11:00 p.m. on September 2, and was awakened shortly after midnight by the noise of the appellant and his daughter coming into the house. She testified that after a very brief conversation with appellant, she took his daughter and went back to bed. About fifteen minutes later, the appellant suddenly climbed in bed between her and the child. She insisted that he get out and when he failed to do so, she got up and headed toward the light switch. However, the appellant grabbed her and forced her into the dining room. He pushed her to the floor, where he began choking her with both hands. She testified that at that point, prior to intercourse, she had been placed in fear for her life and in fear of serious bodily injury. She further testified that although she fought the appellant and pulled his hair, he forceably had sexual intercourse with her. Afterwards, the appellant released her and went to the bathroom where he got sick. She went into the bedroom, got the child who was awake and crying, and started to leave the house. Before she could do so, the appellant came out of the bathroom and refused to let her take his daughter, so she left alone. She then went about two blocks to the home of her godparents, and after making some phone calls, she took a shower and went to the hospital emergency room. She prepared a rape kit, which proved positive and was admitted at trial. She reported the rape to the police that same date. The appellant's wife testified that the appellant and their child arrived back at her parent's house about 3:30 a.m. on September 3rd, and that appellant slept until leaving for work later that day. A police detective, who had interviewed the complainant, testified that both of her 560 arms were bruised from the wrist to the elbow and that there was a scratch on her chin. The complainant testified that after the appellant had thrown her to the dining room floor, he hit her in the face and choked her with both hands. She said that she had been unable to breath while the appellant was choking her, and that she was in fear for her life and serious bodily injury. She testified that the choking left "very light marks" on her throat, and that at some point, the appellant had threatened to kill her. The appellant contends that these injuries and the subsequent death threat were not sufficient to constitute proof of aggravating circumstances, citing Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979); Rucker v. State, 599 S.W.2d 581 (Tex.Cr. App.1980); Bright v. State, 585 S.W.2d 739 (Tex.Cr.App.1979); McAfee v. State, 624 S.W.2d 776 (Tex.Cr.App.-Houston [14th Dist.] 1981); Buckley v. State, 630 S.W.2d 740, 742 (Tex.App.-Houston [1st Dist.] 1982 pet. ref'd). Appellant also contends that because he did not use a weapon or compel submission by an express verbal threat, the evidence was not sufficient under the cases cited to prove aggravated rape. This contention is overruled. All of the cases relied upon by the appellant concerned offenses that occurred prior to September 1, 1981, the effective date of the revised aggravated rape statute, Texas Penal Code Section 21.03. Prior to that date, Section 21.03 provided that a person commits an offense if he commits a rape, as defined by Section 21.02, and he: (1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or (2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone ... The 1981 change in the statute added subsections (3) and (4) and rewrote subsection (2) to provide as follows, (2) by acts, words, or deeds places the victim in fear of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone; ... (emphasis added) Thus, the clear intent of the legislature in amending this statute was to authorize a conviction for aggravated rape if there is proof that the defendant "by acts, words, or deeds" places the victim in fear of death or serious bodily injury.[] Under the statute as amended, we hold that the trier of fact is entitled to consider not only injury actually inflicted and express verbal threats made by appellant, but also his objective conduct, i.e. his acts, words, or deeds. Thus, the fact finder may infer from the totality of the circumstances whether a person's overall conduct placed the victim in fear of death or serious bodily injury. Viewing the evidence in a light most favorable to the verdict, we find there were aggravating circumstances proven which support the jury's finding. The appellant next complains that while the indictment alleges "acts, words and deeds", the court's charge alleged in the disjunctive "acts, words or deeds". The record does not reflect that the appellant's trial counsel made any objection to the charge on this ground, but we are required to review the ground in the interest of justice. Sect. 40.09(13). Contrary to the appellant's contention, the indictment and charge are not in fatal variance as they both only allow conviction under Sect. 21.03(a)(2). The charge did not 561 authorize conviction on a theory not alleged in the indictment. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). The fact that the indictment alleged matters in the conjunctive and the charge required proof in the disjunctive, does not constitute reversible error. Cowan v. State, 562 S.W.2d 236 (Tex.Cr.App.1978); Zanghetti v. State, 618 S.W.2d 383 (Tex.Cr.App.1981). The appellant's second ground of error is overruled. In his third ground of error the appellant contends that the trial court erred in refusing to charge the jury on the issue of intoxication. Appellant claims that the evidence fairly raised the issue of whether or not he was intoxicated to the point that he could not have achieved an erection and, therefore, that there could be penetration. He also contends that he was entitled to an instruction on temporary insanity because his testimony, corroborated by that of a physician, indicated that he was unable to remember what he did during the time period in which the rape occurred. The complainant testified not only that penetration had occurred, but that the appellant ejaculated, and her testimony was substantiated by the results of the test conducted on the rape kit. The court's charge listed "sexual intercourse" as an element of the offense of aggravated rape, and the term "sexual intercourse" was properly defined as "any penetration of the female sex organ by the male sex organ." The jury was entitled to conclude from the evidence that sexual intercourse had occurred, and we find the appellant's rights to have been adequately protected by the court's charge. The fact that the appellant became voluntarily intoxicated would not constitute a defense to the commission of the crime, and any evidence of temporary insanity caused by such intoxication was only admissible in mitigation of the penalty attached to the offense. Texas Penal Code Sect. 8.04. The appellant did not request an instruction on temporary insanity at the punishment phase of the proceedings. Furthermore, the appellant's testimony that he was unable to remember the events of the crime, was not sufficient to raise the issue of temporary insanity due to intoxication. Hart v. State, 537 S.W.2d 21 (Tex.Cr.App. 1976). The appellant's third ground of error is overruled. The appellant's fourth ground of error asserts that the trial court erred in refusing to charge the jury on the offenses of aggravated assault and assault, which the appellant contends are lesser included offenses of aggravated rape. In a post-submission statement to the court, the appellant has waived this ground of error and it need not be considered. We note, however, that before a charge is required on a lesser included offense there must be evidence that the defendant if guilty, is guilty only of the lesser included offense. Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.1979). Here the appellant pleaded not guilty, and the only evidence he presented was that he could not remember what transpired the night of the offense. Under such circumstances, a charge on any lesser included offense was not required. Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.1971); Hall v. State, 630 S.W.2d 709 (Tex.App.-Houston [1st Dist.] 1981 pet. den'd). The fourth ground of error is denied. The trial court's judgment is affirmed. NOTES [] In interpreting the meaning of the new language, we considered the following. In Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978), the Court of Criminal Appeals held that the term "threats" was not limited to express verbal threats, but could be communicated by "acts, words or deeds." (Id. at 724). Subsequently, a different panel of the court decided Rucker v. State, supra, and held that aggravating circumstances were only present when an express verbal threat is made, a deadly weapon exhibited, or a serious bodily injury was, in fact, inflicted. (Id. at 586). The court specifically held that to the extent Seaton conflicted with Rucker it was overruled. The 67th Legislature amended the statute by incorporating the language from Seaton, i.e., "acts, words or deeds."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1644685/	4 So. 3d 588 (2007) PORTER ALLEN BATTS v. STATE. No. CR-05-2094. Court of Criminal Appeals of Alabama. March 16, 2007. Decision of the alabama court of criminal appeals without opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2857644/	IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-224-CR AND NO. 3-91-225-CR VAN HENSON, JR., APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 0911804 & 0911806, HONORABLE BOB PERKINS, JUDGE PRESIDING PER CURIAM The district court found appellant guilty of aggravated kidnapping and aggravated robbery. Tex. Penal Code Ann. §§ 20.04 (West 1989, § 29.03 (West Supp. 1992). The court assessed punishment in each cause at imprisonment for forty-five years. On April 2, 1992, appellant's court-appointed attorney filed a brief in which he concludes that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). A copy of counsel's brief was delivered to appellant, and appellant was advised of his right to examine the appellate record and to file a pro se brief. After his attorney's brief was filed, appellant contacted the Clerk of this Court and indicated his desire to file a pro se brief. This Court granted appellant three extensions of time to file a pro se brief: to May 6, to July 17, and to September 17, 1992. On September 21, appellant was notified that he should file a pro se brief or request a further extension of time no later than October 1, 1992. Appellant has not responded to this notice and no pro se brief has been filed. We have carefully reviewed the records and counsel's brief and agree that the appeals are frivolous and without merit. Further, we find nothing in the records that might arguably support the appeals. The judgments of conviction are affirmed. [Before Chief Justice Carroll, Justices Jones and Kidd] Affirmed on Both Causes Filed: October 14, 1992 [Do Not Publish]	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/1519374/	430 Pa. 255 (1968) Cummings v. Nazareth Borough, Appellant. Supreme Court of Pennsylvania. Argued April 24, 1968. May 23, 1968. 256 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ. Tom P. Monteverde, with him E. Jerome Brose, John C. Hambrook, and Brose, Poswistilo & LaBarr, and Fox, Oldt & Hambrook, and Schnader, Harrison, Segal & Lewis, for appellants. 257 Norman Seidel, with him Gus Milides and Herbert Toff, for appellees. OPINION BY MR. JUSTICE MUSMANNO, May 23, 1968: This case has already been before this Court and is reported in 427 Pa. 14. It is not necessary thus to repeat what was there said. It is enough to outline on the blackboard the salient facts of the litigation so that we can proceed to discuss the issues raised in this present appeal. The lawsuit arose out of an accident which occurred on July 30, 1963, when Darrel L. Cummings, 16½ years of age, dived into a swimming pool owned and operated by the Borough of Nazareth, sustaining such serious injuries from that diving that he has been rendered a helpless cripple for life. In the ensuing lawsuit the jury returned a verdict for $150,000 in his favor and $65,000 in the name of his guardian. The defendant filed motions for judgment n.o.v. and a new trial. The Court of Common Pleas of Northampton County entered judgment n.o.v., stating that the plaintiff had not proved actionable negligence on the part of the defendant and that the plaintiff had assumed the risk of diving into the swimming pool. The plaintiff appealed and this Court reversed, by a vote of five to one. Mr. Chief Justice BELL filed a dissenting opinion. In view of the fact that the court below, in entering judgment n.o.v., deemed ruling on the motion for a new trial superfluous, we remanded the case to the trial court with instructions to dispose of the motion for a new trial still pending before it, adding that if the motion was refused, the court should enter judgments on the verdicts. A court en banc considered the motion for a new trial, and two of the three judges composing the court refused the motion for a new trial and judgments were entered on the verdicts. 258 One of the judges of the court en banc, the trial judge, filed a dissenting opinion. The defendant has now appealed to this Court, urging that the order of the lower court be reversed, advancing argument that the verdict was against the weight of the evidence, that the evidence did not establish that the plaintiff's injuries were caused by striking his head against the bottom of the pool, and that during the trial plaintiff's counsel referred to evidence which had been excluded by the trial judge. It was the position of the plaintiff at the trial that the accident which disabled him was due to the failure of the defendant to place the diving board from which he dived over a body of water of sufficient depth. Had there been an adequate depth at this point the momentum of the plaintiff's dive would not have taken him to the bottom of the pool. The jury found by its verdict that the defendant had failed in its duty to exercise the care it owed the plaintiff in building and maintaining the pool. This Court concluded that the jury was justified in reaching that conclusion. Thus that question is settled definitively by our decision and may not be relitigated. This Court, in passing on the defendant's motion for judgment n.o.v., thoroughly considered the evidence as to how the plaintiff sustained the injuries which were the basis of his lawsuit, and we found and so declared in our decision that Darrel Cummings suffered a broken back as the result of his head striking the bottom of the swimming pool. The defendant, in spite of our conclusive finding on the subject, seeks to reargue the point, insisting that the plaintiff came to grief because, as he entered the water, his body collided with that of a fellow-swimmer, John Werkheiser, who was treading water at that point. In our previous decision we referred to the testimony of Dr. Hugo C.J. Verbruggen who testified at 259 the trial that it was "impossible" for Darrel to have sustained his grave injuries by contact with another swimmer. Another medical witness, Dr. Rolf Johnson, testified that "the patient had a severe blow on the head causing the head to be flexed forward violently." He explained further that it was "highly unlikely" that Darrel's injuries were caused by any collision with another swimmer because "the other swimmer has a soft body and there will be a certain amount of give, and the force required to give a fracture dislocation of the neck, you have to have a sudden stop, an impact. It would be like an automobile accident." When John Werkheiser, the young man who had been treading water at the time Darrel dived, was asked: "The fact that Darrel Cummings brushed against you, did it in any way disturb your treading the water?" he replied: "No, it didn't harm me . . . I felt it, but there was no pain, no discomfort." The plaintiff himself testified: "Then after brushing against John and going down further, all of a sudden it felt like a sledge hammer hit me and I was out . . . after brushing Johnny, I remember just a little bit after that still going down in the water. Then all of a sudden, pow: Just like that, I was out." The trial judge admitted that there was evidence to support the proposition that the plaintiff's head hit the bottom of the pool. He charged the jury: "the plaintiffs' theory of the case as I understand it is that Darrel struck his head on the bottom of the pool . . . From it you might infer that he had struck the bottom. . . Well, these and other questions of fact, members of the jury, are solely for you." Obviously, if there had been no evidence that the plaintiff's head had struck the bottom of the pool, the trial judge would have excluded that concept from the jury's consideration. Not only that, the court approved 260 the point for charge submitted by the defendant, namely: "I. If you find that plaintiff, Darrel Cummings, did not strike the bottom of the pool, your verdict must be for the defendant." and added: "Now, that is a proper point, and I affirm it because the entire presentation here is predicated, I believe, on the alleged negligence of the borough to maintain a proper depth." Obviously again, if there had been no evidence that the plaintiff's head had struck the bottom of the pool, the trial court would undoubtedly have informed the jury of the absence of such evidence. In addition to the objective evidence presented that the plaintiff's injuries resulted from his contact with the floor of the pool, the physics, logic and the law of cause and effect confirm that conclusion. It was admitted that John Werkheiser was not injured in the slightest. It will be recalled that John was treading water at the time of Darrel's dive. While treading water, which has been described as "riding a bicycle", the swimmer's whole head is above water and his shoulders would also be either above water or so close to the surface that his head and shoulders would present a resisting solid object to any body falling on it from above. In performing from the diving board, Darrel leaped into the air and then plunged downward. Since the diving board was about three and a half feet above the water and Darrel's leap took him up at least a foot or two, his body would have to travel some five feet or more before it contacted the upper part of John's body. Considering the momentum Darrel's body would have acquired from the spring, plus the fall, it would be inevitable that John would have suffered some injury from the impact, if Darrel had landed on him. At the very least John would have been stunned, if only momentarily. But he was in no way affected by the blow supposed to have been delivered, under the 261 defendant's theory, by Darrel's body striking John's body. If the force of the impact of the collision of the two bodies was such that it broke Darrel's back, certainly it would have been powerful enough to have done some damage to John. It must be repeated, however, that John was in no way disturbed. Although the trauma suffered by Darrel was such that it prostrated him on the swimming pool floor, the impact supposedly felt by John was so insignificant that when Darrel did not surface, John went down to search for Darrel on the bottom of the pool. After locating him, he helped him to a ladder and there, with the cooperation of a lifesaver, he participated in the job of lifting Darrel to the open-air apron of the pool. The defendant contends that the plaintiff entered the water with his head unprotected by hands above his head. In this respect it quotes what plaintiff's counsel indicated at the pre-trial conference, but the fact remains that, at the trial, John Werkheiser testified, as the defendant quotes in its brief, that Darrel's dive was a "sloppy swan dive," defining such a dive: "You go into the air, your arms are straight out like this indicating, and before you hit the water you bring your arms up in front and dive in." Darrel himself declared at the trial that, although at the moment of the spring from the diving board, he was holding his arms horizontal to his shoulders, he brought them together within a foot of each other before he entered the water. This is also quoted in the defendant's brief. Thus, in spite of what may have been said prior to the trial as to how Darrel entered the water, the evidence at the trial was specific that his arms were above his head when he struck the water. Thus it cannot be successfully maintained as the defendant attempts to maintain, that Darrel could have been injured by his head hitting the water. 262 The defendant argues that five witnesses testified to statements made by Darrel which were inconsistent with what he said at the trial. A study of those statements do not reveal that they exclude that the accident happened because the water in the pool where Darrel dived was too shallow for safety. But if the statements did not confirm Darrel's testimony, the matter of inconsistency was a subject for the jury's consideration. The trial judge charged with precision on this subject. After indicating that the jury should attempt to reconcile conflicting statements, he went on to say that if such reconciliation was not possible, then "you have to decide which of the witnesses do you believe as to this particular point, and you do this by reviewing for yourselves the manner in which the witnesses appeared before you, the manner in which they testified on direct and cross-examination. Were they forward? Did they seem to be telling a pre-conceived story, or did they thoughtfully answer the questions?" The defendant took no exception to this part of the charge, or, indeed, to any part of the charge. It did not even file a general exception after the trial judge invited corrections or additions. Pursuing its theory that the accident did not happen as described by the plaintiff, the defendant quotes from the written memorandum made by a representative of the borough's insurance company, a J.J. Reed, after he had talked with Darrel in the hospital. But even this statement contains an observation by Darrel which is highly consonant with the theme of the plaintiff's case, namely, that there was not enough water at the point where Darrel dived to hold the diver's body buoyant until it started on its ascent. Reed wrote in his statement that Darrel told him "that when he hit the water, it felt as if he dove off the high diving board without any water being in the pool." (Emphasis supplied) 263 The defendant further quotes Darrel's testimony: "Q. Okay. How, after you brought your hands together, what happened? A. I remember my hands hitting the water, my body going through the water. I can remember brushing slightly against John. Then after brushing against John and going down further, all of a sudden it felt like a sledge hammer hit me on the head and I was out. How long I was out, I don't remember." After this quotation the defendant arrives at the startling non sequitur that this testimony reasonably suggests that Darrel may have had "contact with Werkheiser's threshing body, treading water, after the initial brushing; (2) contact with some other swimmer, or (3) contact with some other object in the pool." There is not a syllable in the record to justify the supposition that Darrel may have had contact "with some other swimmer," or "some other object in the pool." The defendant terminates its argument on this subject with the conclusion that: "The great weight of the evidence indicates that Darrel was injured because he entered the water with his head unprotected and his head hit Werkheiser's thigh as the latter was treading water." The answer to this assertion is that there is no evidence whatsoever that Darrel's head struck Werkheiser's thigh as it entered the water or at any time. As already stated, the trial judge (Judge WOODRING) did not agree with the conclusion of his two colleagues that the defendant was not entitled to a new trial. The defendant builds a superstructure of smoke on this factual foundation. It says that "unless a fair review of the evidence indicates that Judge WOODRING was guilty of fraud, collusion, or clear abuse of discretion, a new trial should have been awarded by the court below and should be awarded by this Court now." 264 There is nothing in all the Pennsylvania Reports to warrant so extravagant an utterance. To say that a trial judge's conclusions must be supported unless it can be shown that he was dishonest to the point that he would be subject to impeachment, is to lay down a criterion of judicial infallibility that would make appellate courts practically unnecessary. The views of a trial judge are important, of course, but it is a long distance from saying they are important to saying that they are suitable for deposit in the Ark of the Covenant. The defendant speaks of Judge WOODRING as "a highly esteemed jurist with more than 20 years on the bench." This Court gladly affirms that statement. But the question here is not tenure on the bench, for the incumbency of President Judge BARTHOLD, who voted against a new trial, stretches to 30 years. The test is whether there was an abuse of discretion on the part of the court below, that is, the court en banc. If the trial judge's conclusions were to be accepted ex cathedra, there certainly would be no reason for a court en banc. There is precedent for accepting the ruling of a court en banc, even where it conflicts with the views of the trial judge. In Dobson v. Crafton Borough, 315 Pa. 52, this Court said: "Plaintiffs argue, however, that a different result must be reached where the trial judge dissents from the refusal of a motion for a new trial. We cannot agree with this contention. . . A proper deference, of course, should be paid to the opinion of the trial judge, who saw and heard the witnesses, but if a majority of the court, after hearing and weighing his views, and after considering the testimony, the verdict of the jury, and the arguments of counsel on the motion, are convinced that a new trial should be refused, and no abuse of discretion appears, the order refusing a new trial will be affirmed." 265 The defendant finds fault with plaintiff's counsel because, in the course of his examination and cross-examination of witnesses he referred to certain manuals treating of required depths of swimming pools. In our decision of September 26, 1967, we found that the Borough of Nazareth failed in its duty to exercise proper care in the construction and operation of the pool and the placement of the one meter diving board. We definitively found and so declared that the borough was negligent in not having provided a sufficient depth of water beneath the crucial diving board. In our opinion at 427 Pa. 14, we said: "The head lifeguard at the Nazareth pool said he did not know the actual depth of the water under the one-meter board and was unfamiliar with the minimum standard depth requirement under such a diving board as recommended by the Y.M.C.A., Official Collegiate Scholastic Swimming Guide, American Public Health Association, National Pool Institute, the A.A.U., the Southeastern Swimming Pool Association and the United States Department of Health." Just before the termination of the trial, plaintiff's counsel offered in evidence the manuals referred to. They were refused by the trial court. The defendant now argues that, because the manuals themselves did not go out with the jury, it was improper for plaintiff's counsel to have referred to them. That does not follow. It is entirely proper in examination and cross-examination for counsel to call the witness's attention to published works on the matter which is the subject of the witness's testimony. Whether those works are consequential or not is a matter for determination by the jury. Obviously if counsel speaks of a little known or even discredited work, he runs the risk of being discredited by the jury. The borough contended that its swimming pool had been properly constructed and that it was not aware 266 that the depth of the water at the controverted point was not sufficiently profound. It was highly proper and relevant, therefore, for plaintiff's counsel to question the defendant's witnesses testifying on this subject, as to whether they know of required depths announced in manuals on swimming pools. Adam Shekletski, the defendant's park manager, testified that he never consulted literature on the subject of the proper depth of swimming pools. It was relevant to ask him why. When Joseph Frederick Cook, a university graduate architect, testified that the minimum depth required at the crucial point in the pool should have been 9 feet, defendant's counsel asked him: "Well, in all this reading and manuals and lectures and that sort of thing that you got that gave you this knowledge that makes you an expert on controlled pools, somebody must have touched on residential pools somewhere along the line." This shows that even defendant's counsel acknowledged that knowledge on the standards of swimming pool depths can come from reading manuals on the subject. Fred Hahn, head lifeguard at the swimming pool, testified that he purchased a Red Cross Water Safety Manual. When he was asked if he had read the manual and whether it contained information and data regarding minimum depth requirements, defendant's counsel objected and the object was sustained by the trial court. If defendant's counsel had regarded reference to the swimming pool manuals improper, certainly he would have presented a point for charge on the subject and he would have moved the court to strike out all questions and answers which referred to the manuals. He did none of these things. The lower court, 267 in refusing the motion for a new trial on this subject stated very well that the questions put by plaintiff's counsel on the manuals were not only not improper but "were relevant and admissible, not as indicating the recommended depth in the publications to which reference was made as being the standards for the operators of the pool, but rather as indicating negligent operation of the pool by those in charge of its operation in that they did not know of these publications, or if they knew of them, never consulted them." Under the instructions of the court the jury was given utmost latitude to ignore what was said in the manuals and by the experts: "But I must tell you as a matter of law that the Commonwealth of Pennsylvania has no standards as to depth requirements in swimming pools, either municipal or private or any other type of swimming pools; no depth requirement for water under a one-meter board or any other diving board. Our Bureau of Health of the Commonwealth has no standards at all, and while the Court permitted these three men to give you their opinion and their notion of the custom in the trade, that is not binding upon you. That is merely offered to assist you, if you find it to be of assistance. It is in the nature of expert testimony, and you are not bound by expert testimony. It is your good judgment based upon the simple doctrine of reasonable care." It is difficult to see how the defendant, under those instructions, could have been hurt in any way by reference to the manuals which, we repeat, never were given to the jury. When we reviewed this case at the time of considering the requested judgment n.o.v., we found, and so stated, that the evidence so clearly established the negligence of the defendant that had the jury decided for the defendant, a question "could well have arisen" 268 as to whether the verdict might not have been against the weight of the evidence. A re-review of the record reconfirms that view. The transcript of the trial abundantly shows that the evidence preponderated in behalf of the plaintiff's position. The only eyewitnesses to the accident were Darrel himself and John Werkheiser who testified to the circumstances and actions which prima faciedly demonstrated that Darrel's injuries were the result of his striking the bottom of the pool. As above stated, Dr. Rolf Johnson, orthopedic surgeon and a member of the American Academy of Orthopedic Surgeons, who examined Darrel on his admission to the hospital, testified that it was his opinion from an examination of Darrel's injuries that Darrel suffered a severe blow to the head. Dr. Hugo C.J. Verbruggen was another orthopedic surgeon who saw Darrel on the day of his admission to the hospital and intermittently later. He testified that the fracture of the vertebra was due to the fact that Darrel's head when he received the blow, was jolted. Dr. Waltman, medical witness presented by the defendant, never examined the plaintiff or saw the X-rays and admitted he did not know the amount of force necessary to cause a compression fracture. Even so, he admitted that hitting the water could not cause the fracture. Jos. F. Cook, professional architect, who had designed 8 or 10 swimming pools, testified that the minimum depth required of water beneath one-meter board was 9 feet (at the Nazareth pool, it was only 6' 8 7/8" deep). Robert Clotworthy, Olympic diving champion and Princeton swimming coach, testified that the minimum depth of water under a one-meter board should be 9 feet. William Lawson, swimming and diving coach at Lafayette College, testified that the minimum depth 269 requirement prior to 1935 (the date the Nazareth pool was constructed) was 8 1/2 feet and that the minimum requirement after 1935 was 10 feet. The defendant did not offer any expert evidence to contradict the plaintiff's experts. It seemed to rely for its defense on the argument that Darrel could not have been injured in the manner testified to him because such an accident had never occurred before. This, of course, is no defense at all because an accident in itself presupposes an unusual occurrence even though the forces and circumstances which go into making it cannot be reconstructed until after the accident. Our reference here to some of the witnesses is only a partial account of the evidence produced in behalf of the plaintiff's case, but it is symbolical of the objectivity of the plaintiff's case. The defendant's case consisted mostly of argumentation that the accident did not happen as the jury found it happened. A thorough re-review of the entire record leads us to the definitive conclusion that the verdict not only was not against the weight of the evidence but in entire accord with the evidence. Another academic explanation by the defendant of the reason for the verdict is its assertion that the jury's verdict "reflected a mistaken and capricious disregard of the facts," but nothing in the record will confirm this theoretical criticism. Then it is argued that the verdict "must have been influenced by emotional or other extraneous factors." What were those extraneous factors? Neither defendant's counsel nor the trial judge can point to any supposed extraneous factors. The defendant also presses upon us the trial judge's statement that the plaintiff's helpful "prognosis for his future could not help but establish a justifiable sympathy for him, and very likely, for his cause." Although the trial judge uses the 270 phrase "justifiable sympathy," he obviously intends that the sympathy was not justifiable. But there is nothing illegal about sympathy. It would be a deplorable civilization if the sight of a helpless human being, and especially a young person, did not excite the sympathy of the beholder of his tragic fate. Whatever reactions normally follow any given phenomenon are not to be excluded from the jury box. Emotion and compassion are as much a part of the processes of human evaluation as intellect and mental computation. If jurors are to be steeled against natural emotions and their sensitivities are to be copper-plated by an intentional and calloused disregard of what their eyes see and their ears hear, the attainment of a just result will be artificially impeded. Of course, emotions must not be allowed to run rampant, nor will they, under our adversary court system where opposing attorneys are allowed maximum latitude to prove that the cause of the disabled person is not as presented by himself and counsel. In addition, the acute supervision of the judge is further protection against appeals to the jury not based on evidence. A study of the transcript in this case does not reveal that anything happened during the trial or the lawyers' arguments which suggests that the defendant's case was disadvantaged because of improper appeal to the jury's sympathies. Certainly the trial judge adequately instructed the jury in this respect. With flinty firmness he said to the jury: "I must point out to you, as has already been done, that in this type of case there is a great danger to color your thinking and your determination with sympathy. Sympathy ought to be rejected. This ought to be a cold, calculated business-like determination on your part." The judgments of the court below are affirmed. Mr. Justice ROBERTS concurs in the result. Mr. Justice JONES and Mr. Justice COHEN dissent. 271 DISSENTING OPINION BY MR. CHIEF JUSTICE BELL: I very strongly dissent. The minor plaintiff was semi-paralyzed as the result of diving in defendant's swimming pool. Anyone who is badly hurt deserves our sympathies, but that is not and should not be sufficient to justify a verdict which is contrary to the overwhelming weight of the evidence or the law, or both. In this case it was contrary to both, and in the interest of Justice it is imperative that a new trial be granted. The trial Judge correctly summarized the pertinent facts: "He was athletically inclined and wrestled during his sophomore year. He swam in defendant's pool during the summers of 1959, 1960, 1961, 1962 and 1963, until the date of the accident [on July 30, 1963]. During the summers of 1961, 1962 and 1963 Darrel used both the one-meter diving board and the diving tower which was 11 feet high. Darrel used the pool at least 20 times[] per summer and for the past two or three summers used the diving board approximately 8 or 10 times per day. He performed various dives, including a `running front dive,' a `cannon ball' and `can opener' which he described as more of a splash than a dive, a `sloppy swan' and a `kamikaze' in which the diver enters the water head first with arms outstretched in a horizontal manner in imitation of the wings of a descending airplane." The Borough of Nazareth employed at least four lifeguards, able, ready and eager at all times to speed to those who faltered or weakened in the water, or had any reason at all to need assistance. It is crystal clear (a) that plaintiff, an exceptionally experienced diver, undoubtedly should have been and actually was aware of the risks, if any, that he and every other diver took in this pool with which he was 272 so familiar, and (b) that he voluntarily assumed the risk of injury from diving off this board which he had done a myriad times before in this very pool. Podvin v. Somerton Springs Swim Club, 406 Pa. 384, 178 A.2d 615; Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 96 A.2d 181; Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238; Rauch v. Pa. Sports and Enterprises, Inc., 367 Pa. 632, 81 A.2d 548. The evidence most strongly relied upon by the appellees was the opinion evidence of two "swimming pool experts" as to the proper construction of this and every other swimming pool. Their testimony is so contrary to the actual facts in the instant case 5,000 dives without any injury in this pool for the entire twenty-eight years of its existence as well as to the common knowledge of every layman who ever swam in private or public pools, as to be entitled to little or no weight. The law is well settled that an opinion of an expert is entitled to little weight as against actual facts: Girsh Trust, 410 Pa. 455, 189 A.2d 852; Sommerville Will, 406 Pa. 207, 177 A.2d 496; Kadilak Will, 405 Pa. 238, 174 A.2d 870. Cf. also Richette v. Pennsylvania R.R., 410 Pa. 6, 187 A.2d 910; Commonwealth v. Ahearn, 421 Pa. 311, 323, 218 A.2d 561; Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98. In Girsh Trust, 410 Pa., supra, the Court aptly said (page 471): ". . . `opinion evidence is generally considered of a low grade, and not entitled to much weight against positive testimony of actual facts.' . . ." Moreover, five witnesses testified to statements made by plaintiff which were inconsistent with his testimony at the trial. What we said in Bohner v. Eastern Express, Inc., 405 Pa. 463, 471, 175 A.2d 864, is pertinent, relevant and controlling: "With respect to a new trial, `[w]here a trial Judge or Court sees and hears the witnesses, it has not only an inherent 273 fundamental and salutary power, but it is its duty, to grant a new trial when it believes the verdict was capricious or was against the weight of the evidence and resulted in a miscarriage of justice [citing numerous recent cases] . . . "`Moreover, in such circumstances, namely, where the jury's verdict is capricious or against the weight of the evidence or results in a miscarriage of justice, it should not be allowed to stand, no matter how many new trials must be granted in the interest of justice: Elia v. Olszewski, 368 Pa., supra, and Maloy v. Rosenbaum Co., 260 Pa., supra': Clewell v. Pummer, 388 Pa. 592, 598, 599, 131 A.2d 375. See to the same effect: Sherman v. Manufacturers Light and Heat Company, 389 Pa. 61, 68, 132 A.2d 255; Greco v. 7-Up Bottling Company, 401 Pa. 434, 165 A.2d 5; Hartigan v. Clark, 389 Pa. 283, 288, 289, 133 A.2d 181; Lupi v. Keenan, 396 Pa. 6, 8, 151 A.2d 447; Coward v. Ruckert, 381 Pa. 388, 393, 113 A.2d 287; Frank v. Losier & Co., Inc., 361 Pa. 272, 276, 64 A.2d 829." This was reaffirmed in Frisina v. Stanley, 409 Pa. 5, 7, 185 A.2d 580. For these reasons, I very strongly dissent and would grant a new trial, and, if Justice requires, additional new trials until a jury renders a verdict in accordance with Justice. NOTES [] Italics throughout, ours.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519411/	478 Pa. 63 (1978) 385 A.2d 1313 COMMONWEALTH of Pennsylvania, Appellant, v. Gary A. GREBER and William R. Gullick, Appellees. Supreme Court of Pennsylvania. Argued March 8, 1976. Decided April 28, 1978. 64 65 Robert E. Colville, Dist. Atty., Charles W. Johns, Asst. Dist. Atty., Pittsburgh, for appellant. John J. Dean, John H. Corbett, Jr., Pittsburgh, for appellee. Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. OPINION MANDERINO, Justice. Appellees, Greber and Gullick, were charged with several violations of the Controlled Substance, Drug, Device and Cosmetic Act, conspiracy, and corrupting the morals of a minor. Prior to trial, appellees sought to suppress certain physical evidence obtained by police at the time of, and subsequent to, their arrest. This is an appeal by the prosecution from an order of the trial court suppressing this physical evidence. The trial court held that the evidence was the product of an illegal search and seizure because appellees' arrest was not based on probable cause. The Superior Court affirmed, per curiam, Commonwealth v. Greber, 231 Pa.Super. 767, 331 A.2d 523 (1975). We granted appellant's petition for allowance of appeal, and this appeal followed. We affirm. Following are the facts as stated by the trial court: "On February 28, 1974, Officer Dan Matuszak of the Mount Lebanon Police, took up a surveillance from a building whereby he could observe the area around Bowling City. This surveillance was conducted at approximately 10:00 p.m. The area was a high crime area. From a distance of several hundred feet Officer Matuszak viewed the entire parking area of the Bowling City parking lot with a pair of binoculars. At approximately 10:20 p.m., Officer Matuszak noticed a juvenile standing at the front entrance to Bowling City itself. The juvenile made several trips to the parking lot as if he were looking for somebody. Each time he would return to the doorway. 66 Eventually, a Ford Mustang pulled into the parking lot. The juvenile approached the vehicle and talked for a moment. The vehicle then pulled to the corner of the building and the juvenile followed on foot. The juvenile then approached the passenger side and spoke with the occupants. A bag was handed out of the car. He held it up to his face as if to smell it. Thereafter, he placed it at his feet and pulled something out of his pocket that appeared to be either a billfold or a wallet. Officer Matuszak could see the flash of a bill or bills. However, on cross-examination Officer Matuszak stated that what he thought was a flash of bills by the juvenile could have been a credit card or a piece of paper, or it could have well been anything. The juvenile then picked the bag up and proceeded to walk back toward the main entrance of Bowling City. Officer Matuszak testified that the activity of the juvenile in itself did not appear to be criminal. However, he stated that it was common action during a buy to sniff the merchandise before payment was made. It was Officer Matuszak's testimony that he assumed a sale of narcotics had been made. He, thereafter, contacted a patrol car that was working the area. In a short time the patrol car operated by Officer McGinnis arrived on the scene. Officer McGinnis pulled his car in a position that blocked the vehicle in question. The defendants, Greber and Gullick, were in said vehicle. Officer McGinnis testified that he received the police radio message from Officer Matuszak at approximately 10:38 p. m. He was told that a buy had been made in the parking lot. Of course, this was a mere assumption on the part of Officer Matuszak. He was also told that a juvenile received a bag from the automobile, smelled it, and walked away from the vehicle. Officer McGinnis was given a description of the vehicle in question and of the juvenile who took the bag. He was told that the juvenile had set the paper bag down. 67 When Officer McGinnis came to the parking lot he pulled directly in front of the vehicle in question. Thereafter, he asked the driver for his license and owner's card. Officer McGinnis then turned toward the juvenile who was walking towards him. He asked the juvenile to pick up his bag. The juvenile indicated that the bag was not his. At that point, Officer McGinnis retrieved the bag, opened it, and inside viewed a clear plastic bag containing marijuana." (Transcript citations omitted.) The juvenile and appellees, Greber and Gullick, were placed under arrest. The vehicle was searched and then taken to the police garage. A search warrant was obtained, and pursuant to the warrant, the vehicle was again searched, this time more thoroughly. The search revealed a scale, and a half kilogram of suspected marijuana in the trunk of the car. Greber was also found to be carrying a vial containing a small amount of marijuana. The prosecution contends that the tangible evidence should not have been suppressed. It concedes that the conduct of the police officer, prior to his search of the bag, was not justified on the basis of probable cause. The prosecution, however, would have us apply the rationale of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) to the circumstances in this case. We decline to do so. The prosecution does not dispute that detaining appellees by blocking their automobile constituted a seizure within the meaning of the Fourth Amendment. Even if such an intrusion is not an arrest, as the prosecution argues, and if Terry is applicable, the seizure in this case does not meet the requirements of Terry. A stop for investigatory purposes is justified under Terry only if the "police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . ." (Emphasis added.) Terry, supra, 392 U.S. 1 at 30, 88 S.Ct. at 1884, 20 L. Ed. 2d 911. Even if we were to apply this rationale to the present case, the police conduct here would remain unlawful because the record satisfies us that these police officers did not observe any 68 unusual conduct. As correctly noted by the suppression court, the officer in question simply "assumed" that criminal conduct was occurring. In Commonwealth v. Lawson, 454 Pa. 23, 29, 309 A.2d 391, 394 (1973), we stated that "[e]very commercial transaction between citizens on a street corner when unidentified property is involved does not give rise to probable cause for an arrest." This statement applies equally to this situation. The facts here do not give rise to a reasonable conclusion that criminal activity was afoot. Whether an officer should briefly detain a citizen for purposes of investigating suspected criminal activity will, of course, depend on the facts and circumstances of each case. Commonwealth v. Jones, 474 Pa. 363, 378 A.2d 835 (1977). The acts of appellees here riding in a car, stopping at a bowling alley, exchanging a package were all acts that were outwardly innocent. Cf. United States v. Henry, 361 U.S. 98, 103-104, 80 S. Ct. 168, 4 L. Ed. 2d 134, 139-40 (1959). What occurred here was one isolated transaction, not a series of transactions which, under certain circumstances might indicate that an exchange of drugs was taking place. See, Commonwealth v. Larson, supra. Officer Matuszak had no prior information that a drug transaction would occur on this evening. There was simply no reasonable basis to conclude that this particular package, a shopping bag large enough to contain a countless number of objects, happened to contain illegal drugs. While the officer's curiosity might have been aroused by the action that was witnessed, and while he might have had a hunch that illegal contraband was involved, that is not sufficient. See Terry v. Ohio, supra; Commonwealth v. Jones, supra. Order Affirmed. JONES, former C.J., did not participate in the decision of this case. ROBERTS, J., filed a concurring opinion. EAGEN, C.J., and O'BRIEN, J., concurred in the result. NIX, J., dissents. 69 ROBERTS, Justice, concurring. I agree that the order of the suppression court suppressing physical evidence must be affirmed. The role of an appellate court in reviewing suppression orders is well-established. As stated by this Court in Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977): "When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant's constitutional rights. Pa.R.Crim.P. 323(i). The suppression court must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. See Pa.R.Crim.P. 323(h). On review, our responsibility is `to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.' Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975)." See Commonwealth v. Stafford, 451 Pa. 95, 101, 301 A.2d 600, 604 (1973); Commonwealth v. Sharpe, 449 Pa. 35, 44, 296 A.2d 519, 524 (1972). Here, the suppression court found that an arrest occurred when the officer positioned his vehicle so as to prevent movement of appellant's car. There is ample support in the record to support this finding. See Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963). The suppression court further found that appellant's arrest was not based on probable cause. The Commonwealth agrees that probable cause to arrest did not exist at the time the police officer pulled directly in front of appellant's vehicle. Accordingly, the suppression court's conclusion that the evidence must be suppressed because the subsequent search followed an unlawful arrest is supported by the record and is not erroneous as a matter of law. Thus, we need not discuss the issue of whether the officer's search was justified under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968) and its progeny. *70 The order of the suppression court suppressing the evidence must be affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519415/	232 S.W.2d 671 (1950) MIEARS v. INDUSTRIAL ACCIDENT BOARD. No. A-2642. Supreme Court of Texas. June 28, 1950. Rehearing Denied October 4, 1950. Fred Parks, Houston, for petitioner-respondent, Miears. Price Daniel, Attorney General, and L. P. Lollar, Assistant Attorney General, for respondent-petitioner, Industrial Accident Board. HART, Justice. This case requires the construction of the Second-Injury Fund Act, a part of the 672 Workmen's Compensation Act, Article 8306, Section 12c, Revised Civil Statutes, as amended in 1947, Vernon's Ann.Civ.St. art. 8306, § 12c. The stipulation of the facts, on which the case was tried, shows that the petitioner in June 1929, received a non-compensable injury which resulted in the total and permanent loss of the sight of his right eye. On November 9, 1946, he received an accidental injury which resulted in the total and permanent loss of the sight of his left eye. The petitioner was paid by his employer's insurer, for the second injury, the compensation provided by Article 8306, Section 12, for the loss of one eye, being $25 per week for 100 weeks. He then applied to the Industrial Accident Board for additional compensation under Section 12c from the Second-Injury Fund and the Board awarded him compensation for 201 weeks, which represented the compensation for total and permanent disability (401 weeks) after deducting therefrom the compensation actually paid for the loss of the second eye (100 weeks) and also the compensation which would have been payable for the loss of the first eye (100 weeks), if that loss had been compensable under the Workmen's Compensation Act. The district court on appeal held that deduction should be made only for the compensation paid for the second injury and awarded interest on past due installments of compensation from their due dates, but denied the petitioner's claim for a lump-sum payment. The Court of Civil Appeals modified and affirmed the judgment of the district court. It held that the Board was correct in deducting 100 weeks for the first injury as well as 100 weeks for the second injury, and that the petitioner was entitled to a lump-sum payment and interest on past due installments and also on the amount of the judgment from its date. Tex.Civ.App., 227 S.W.2d 571. The problem of the compensation to be awarded to a previously injured workman when he receives a second injury has been troublesome and has led to various solutions by the legislatures and courts. See notes, 44 Mich. L. Rev. 1161; 4 Washington and Lee L. Rev. 112; Annotations, 67 A.L.R. 794, 30 A.L.R. 979. The problem was recognized by the Texas Legislature at the time of the enactment of our Workmen's Compensation Act in 1917. Acts, 35th Leg., R. S., Ch. 103, p. 269. Section 12c of Part I of that act, which was later codified as Section 12c of Article 8306 of the Revised Civil Statutes of 1925, read as follows: "Section 12c. If an employe who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employe had there been no previous injury." The Legislature by adopting Section 12c recognized the policy in favor of limiting liability for second injuries in order to encourage the employment of persons physically handicapped by previous injuries. Obviously, an employer would be discouraged from employing such persons if he knew that under the law his insurer would become liable in the event of a second injury for the disability resulting from the combined effect of the two injuries, and not merely for the disability resulting from the second injury considered alone. This policy was recognized by the Commission of Appeals in applying the provisions of Section 12c in a case having a factual situation similar to the present case. Gilmore v. Lumbermen's Reciprocal Ass'n, Tex. Com.App., 292 S.W. 204, 205. In that case the employee had lost one eye "in an accident during his childhood" and lost the second eye as a result of a compensable injury. It was held that he could recover only the compensation fixed by statute for the loss of one eye. As to the statutory policy, the Court said, 292 S.W. at page 206: "On first impression it would seem that statutes similar to the particular article under consideration would work a great injustice upon those who have been so unfortunate as to lose an eye or a limb, but upon more mature consideration we can see what we consider to be good reasons for the enactment 673 of such laws. If two men should apply to an industrial concern for employment, one of them having two eyes and the other only one, and the employer knew that if the man with two eyes lost one eye during the employment that he would be entitled to $1,500 compensation, and if the man with one eye lost it he would be entitled to $6,000 compensation, the employer, having to pay a higher rate of insurance because of the additional hazards for the man with one eye, other things being equal, would, if he conducted his business on sensible business methods, give employment to the man with two eyes; and after a careful investigation of the legislation on, and judicial interpretation of the question, we have reached the conclusion that the Texas statute under discussion and similar statutes in other states were enacted for the benefit of persons as a class who enter employment with permanent partial disability rather than to their detriment." In spite of the soundness of the reasoning behind the provisions of Section 12c, it is obvious that in cases to which it applied before the 1947 amendment the employee who was totally and permanently disabled as a result of the combined effect of successive injuries received less compensation than would otherwise be awarded for total and permanent disability. As a means of obviating the inequality of treatment resulting from such statutes, it was urged that "second-injury funds" should be created out of which additional compensation could be paid to such employees. See Sharkey, "The Legal Situation as to Second-Injury Cases and the Necessity for Separate Funds for Such Cases," U. S. Dept. Labor, Bureau of Labor Statistics, Bulletin No. 577 (1933), p. 146; Scurlock, "Workmen's Compensation Legislation-Enactment of a `State-Fund' Amendment," 14 Oklahoma Bar Journal, 1331. In answer to the demand for such a statute, the Legislature in 1947 adopted Chapter 349, Acts, 50th Leg., R.S., p. 690, reading as follows: "Section 1. That Article 8306, Section 12c, Revised Civil Statutes of Texas of 1925, be and the same is hereby amended so as to hereafter read as follows: "Article 8306. "Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers' Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the `Second-Injury Fund' hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries. "Sec. 12c-1. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as `Second-Injury Fund,' hereafter defined. "Sec. 12c-2. The special fund known as `Second-Injury Fund' shall be created in the following manner: "(a) In every case of the death of an employee under this Act where there is no person entitled to compensation surviving said employee, the association shall pay to the Industrial Accident Board the sum of One Thousand, Five Hundred Dollars ($1,500) to be deposited with the Treasurer of the State for the benefit of said Fund and the Board shall direct the distribution thereof. "(b) When the total amount of all such payments into the Fund, together with the accumulated interest thereon, equals or exceeds One Hundred Thousand Dollars ($100,000) in excess of existing liabilities, no further payments shall be required to be 674 paid to said Fund; but whenever thereafter the amount of such Fund shall be reduced below Fifty Thousand Dollars ($50,000) by reason of payments to such Fund, then payments to such Fund shall be resumed forthwith, and shall continue until such Fund again amounts to One Hundred Thousand Dollars ($100,000) including accumulated interest thereon. "Sec. 2. The fact that there is an urgent need to facilitate the employment of handicapped persons including a large number of returning veterans through the establishment of a Special Fund out of which such persons may be compensated when they sustain a subsequent injury, creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be, and the same is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted." It will be noted that this amendment left the former wording of Section 12c substantially unchanged, but added a new clause and two new paragraphs designated 12c-1 and 12c-2 relating to the Second-Injury Fund. The first question which presents itself is whether Section 12c, as amended, is applicable to this case, since the petitioner's first injury was non-compensable. So far as the liability of the employer's insurer is concerned, the parties in this case have assumed that it was liable for the second injury to the employee only on the basis of the loss of one eye; in other words, that Section 12c is applicable and that the construction of the statute as announced in Gilmore v. Lumbermen's Reciprocal Ass'n, supra, still controls. We think that the parties are correct in this assumption. The added provisions of the new statute do not purport to alter the meaning of Section 12c, as applied to a case like this. If anything, the limitation on the liability of the employer's insurer is emphasized by the language of Section 12c-1 that "the association shall be liable only for the compensation payable for such second injury." The opinion in the Gilmore case shows that in that case, as in the case now before us, the first injury was not compensable under the Workmen's Compensation Law, although no discussion of the effect of that fact on the applicability of Section 12c is found in the opinion. The Gilmore case has been followed in Hartford Accident & Indemnity Co. v. Leigh, Tex.Civ.App., 57 S.W.2d 605, and Maryland Casualty Co. v. Gunter, Tex.Civ.App., 167 S.W.2d 545. See also 18 Tex. Law Rev. 243. No case has been found in which the holding in the Gilmore case has been questioned. However, it should be noted here that in cases not involving specific injuries such as in this case, it has been held that Section 12c does not apply except where there has been a first injury which was compensable under the Workmen's Compensation Act, and that the employer's insurer is liable for all of the disability of which the second injury is a producing cause. Texas Employers' Insurance Ass'n v. Clark, Tex.Civ.App., 23 S.W.2d 405 (writ dismissed); Texas Employers' Insurance Ass'n v. Parr, Tex.Com. App., 30 S.W.2d 305; Casualty Reciprocal Exchange v. Dawson, Tex.Civ.App., 81 S.W.2d 284, (writ of error dismissed), Id., 130 Tex. 362, 107 S.W.2d 994; Texas Indemnity Co. v. McNew, Tex.Civ.App., 90 S.W.2d 1115 (writ dismissed); Texas Indemnity Ins. Co. v. Arant, Tex.Civ.App., 171 S.W.2d 915 (writ refused, w. o. m.). See also Lawler, "Texas Workmen's Compensation Law," sec. 117; 45 Tex.Jur. "Workmen's Compensation," sec. 186. We need not attempt to resolve the apparent conflict between the cases just cited and the Gilmore case, because, in our opinion, the Gilmore case has settled the law that Section 12c is applicable to cases involving specific injuries such as in this case and there is nothing in the 1947 amendment to show a legislative intent to change the law in this respect. Indeed, as we have pointed out, both parties in this case in effect conceded that Section 12c is applicable here. Of course, an entirely different case would be presented if Section 12c were not applicable and if the employer's insurer had become liable for total and permanent disability 675 as a result of a second injury. Whether the 1947 act had the effect of changing the meaning to be given to the word "injury" as used in Section 12c is a question which is not raised here and we do not decide it, except to hold that the Gilmore case is still applicable to facts such as appear in this case. The issue presented to us is different from the question decided by the Supreme Court of the United States in Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 69 S. Ct. 503, 93 L. Ed. 611, which is cited by the parties and which was referred to in the opinion of the Court of Civil Appeals in this case. There the question was whether the second-injury fund act was applicable where the first injury was non-compensable, the controverted issue being whether the employer should be liable for total and permanent disability, or on the other hand, whether the second-injury fund should be held liable for the difference between the specific compensation for the second injury considered alone and the compensation for total and permanent disability. It apparently was conceded that this was the correct measure of the fund's liability, if it was liable at all. In the present case, however, the parties agree that the Second-Injury Fund Act is applicable, the only contest being over the extent of the fund's liability. The parties agree that there must be a deduction from the compensation payable for total permanent incapacity, because Section 12c-1 provides that the fund shall be liable for "the remainder" of such compensation. The point at issue is how much should be deducted. The Board insists that there should be deducted the compensation payable for both injuries, considered separately (200 weeks), while the petitioner asserts that only the compensation for the second injury (100 weeks) should be deducted. A consideration of the language of the statute, as well as the purposes it was designed to serve, leads us to the conclusion that the petitioner's position is correct. The newly-added clause of Section 12c provides for a Second-Injury Fund, "from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries." This indicates that the intention of the Legislature was to create a fund out of which the employee would be paid enough to make up the difference between the amount previously allowed him by the terms of Section 12c (only the specific compensation provided for the second injury) and the amount which otherwise would be allowed for the incapacity resulting from the combined effect of both injuries. Moreover, Section 12c-1 provides that "the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor," the employee shall be paid the compensation that would be due for total and permanent incapacity out of the Second-Injury Fund. The word "therefor" naturally refers to the payments for the second injury; and the word "combination" indicates that the total compensation payable for the second injury, including all installments actually paid and those payable in the future, should be deducted. We find no basis in the language of the statute for saying that there should also be a deduction in the amount of the compensation which would be payable for the first injury if it were compensable. It is settled law that the Workmen's Compensation Act should be construed liberally in favor of the injured workman, Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4; 45 Tex.Jur., "Workmen's Compensation," Section 7, and it would therefore not be proper to supply by implication a restriction on the employee's rights which is not found in the language of the statute. The construction of the Act we have adopted serves the purpose of compensating the injured employee for the total and permanent incapacity he has actually suffered, without sacrificing the policy of encouraging the employment of physically handicapped workers. The employer's insurer remains liable only for the compensation payable for the second injury considered alone; the remainder of the compensation is paid out of the fund which is made *676 up of sums which, except for this statute, would be windfalls to insurers in other cases. The Board urges, however, that the payment of the amount claimed by the petitioner would amount to a double payment for the first injury. This argument cannot be applied to the petitioner in this particular case because the stipulation shows that his first injury was non-compensable and that he in fact received no workmen's compensation for it. The Board argues further, however, in effect that it would be unfair to discriminate between claimants whose first injury was compensable and those whose first injury was not. Whether such a discrimination should be made is a question which is not now before us, and we do not think it would be proper to decide it in this case. Our holding is merely that where the specific injuries shown by the facts in this case have been suffered by the employee, he is entitled to compensation from the Second-Injury Fund for total and permanent disability after the deduction of only the compensation payable for the second injury. Our holding is in accord with decisions in other states having similar statutes providing for payments out of second-injury funds. McDonald v. State Treasurer, 52 Idaho 535, 16 P.2d 988; Lehman v. Schmahl, 179 Minn. 388, 229 N.W. 553. See also State Industrial Commission v. Newman, 222 N.Y. 363, 118 N.E. 794; Panther Creek Mines Co. v. Industrial Commission, 342 Ill. 68, 173 N.E. 818. Apparently, in New Jersey the statute, N.J.S.A. 34:15-1 et seq., expressly requires the deduction of the compensation payable for both injuries, Addotta v. Blunt, 114 N.J.L. 85, 176 A. 105, in this respect being in marked contrast to our own statute. The Board cites Stevens v. Kelly-Carter Coal Co., 140 Kan. 441, 37 P.2d 48, Masoner v. Wilson & Co., 141 Kan. 882, 44 P.2d 256 and Bennett v. White Coal Co., 288 Ky. 827, 157 S.W.2d 73. These cases, however, do not involve the construction of second-injury fund statutes. The statutes in those cases were intended merely to limit the liability of the employer's insurer for disability produced by a second injury, the method adopted being to deduct from the compensation for total and permanent disability the compensation which would have been payable for the first injury. We therefore do not consider those decisions persuasive. We think that the Court of Civil Appeals correctly decided that the petitioner was entitled to the payment of compensation in a lump sum and that both lower courts were correct in awarding judgment for interest, for the reasons stated in the opinion of the Court of Civil Appeals. The judgment of the Court of Civil Appeals is reversed in so far as it reduced the compensation awarded to petitioner by the district court; otherwise, the judgment of the Court of Civil Appeals is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519439/	385 A.2d 1075 (1978) Edward AMES v. TOWN OF DANBY. No. 251-75. Supreme Court of Vermont. April 4, 1978. 1077 Bloomer & Bloomer, Rutland, for plaintiff. Griffin & Griffin, Rutland, for defendant. Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ. BILLINGS, Justice. This is an appeal by taxpayer Ames from a judgment rendered by the Rutland Superior Court ordering the Town of Danby to set the taxpayer's real property located in Danby in the list at $16,500.00 as of April 1, 1973, in lieu of the former listed valuation of $17,480.00. In 1973, the Town of Danby conducted a reappraisal of properties within it. The sole method used by the Town in the reappraisal was a sliding scale based on acreage with reductions for ledge, swamp, or steep property. Under the sliding scale, as the number of acres in the property increased, the per acre value given to the property decreased. As a result of the reappraisal, the taxpayer's 72 acres of unimproved land within the Town received an increase in valuation from $4,320.00 to $27,-583.00. Following the grievance meeting required by statute, the Listers reappraised the taxpayer's property by combining it with his adjoining properties in the Towns of Pawlet and Wells. The increase in acreage thus resulting placed the taxpayer's property in a higher per acre category on the scale, and his property was therefore appraised at a lower value, $19,890.00 or $276.25 per acre. Upon appeal to the Board of Civil Authority, the appraisal was lowered to $17,480.00, because a portion of the land was ledge. Pursuant to 32 V.S.A. § 4467, the taxpayer appealed de novo to the superior court. At trial, the Town submitted the appraisal done by the Board of Civil Authority. In addition to that appraisal, the Town also offered the expert testimony of a real estate appraiser. The expert appraised the fair market value of the taxpayer's property in Danby, as of April 1, 1973, to be $18,000.00 or $250.00 an acre. In making his appraisal, he considered a number of factors, including the size, type, location and quality of the property. He also viewed the property in comparison with six other properties within Danby that he considered comparable to the taxpayer's property. Each of the comparables used by the expert had been sold within a few years prior to April 1, 1973, and the price was put into evidence. The comparables had been listed in accordance with the sliding scale. Only one landowner of the six appealed the listing as far as the Board of Civil Authority. The trial court concluded that the sliding scale method of appraisal used by the Town of Danby did not comply with the requirements of the applicable statutes. Based on the evidence submitted by the Town relating to the listed value of comparable properties within the Town, the taxpayer having submitted no evidence on this issue, the court concluded that the value of the taxpayer's property "as of April 1, 1973, corresponding to the listed value of comparable properties within the Town, was $16,-500.00, or about $230.00 an acre." One of the difficulties in this cause is that not only in the presentation of the evidence by the parties, but also in the findings and order of the trial court, there exists a confusion concerning the concepts of appraisal, or fair market, value and listed value. The parties and the court used these terms interchangeably, though their meanings are quite distinct. The appraisal value of property is required by statute to be its fair market value, 32 V.S.A. §§ 3431, 3481, which is that price the property will being in the market when offered for sale and purchased by another. Bookstaver v. Town of Westminster, 131 Vt. 133, 136-37, 300 A.2d 891, 893 (1973). The listed value of property, during the time here material, was fifty per cent of its fair market value, 32 V.S.A. § 3481 (since amended to define listed value as one hundred per cent of fair market value), reduced or increased, if necessary, to correspond to listed values of comparable properties. New England Power Co. v. Town of Barnet, 134 Vt. 498, 505, 367 A.2d 1363, 1367-68 (1976); 32 V.S.A. § 4467. Of course, it is clear from the statutory scheme relating to appraisal that 1078 the listed value may not be increased above the fair market value of the subject property. See 32 V.S.A. §§ 3431, 3481, 4467. In a de novo appeal to the superior court, 32 V.S.A. § 4467 mandates that the court make a finding of the fair market value of the subject property. See Town of Walden v. Bucknam, 135 Vt. ___, ___, 376 A.2d 761, 763 (1977). Also, § 4467 mandates that if the "court finds that the listed value of the property subject to appeal does not correspond to the listed value of comparable properties within the town, the . . . court shall set said property in the list at a corresponding value." Because of the trial court's confusion of fair market value and listed value, it made a finding of listed value only, thereby failing to comply with the requirements of § 4467. This is prejudicial error and alone requires a reversal. Bookstaver v. Town of Westminster, supra, 131 Vt. at 141, 300 A.2d at 896. The sliding scale method of appraisal used by the Town of Danby does not comply with the requirements of the applicable statutes; we previously so stated in Bloomer v. Town of Danby, 135 Vt. 56, 57-58, 370 A.2d 194, 195-96 (1977). Appraisals of real estate are required by statute to be made at fair market value, 32 V.S.A. §§ 3431, 3481, "taking into consideration all the elements of the availability of the property, its use both potential and prospective, any functional deficiencies, and all other elements such as age and condition which combine to give property a market value." Bookstaver v. Town of Westminster, supra, 131 Vt. at 137, 300 A.2d at 893. There is no one controlling factor. Id. The sliding scale method used by Danby did not take into account these various factors. It could not serve to justify the increase in the taxpayer's property assessment. Bloomer v. Town of Danby, supra, 135 Vt. at 58, 370 A.2d at 195-96. From this, the taxpayer argues that the trial court should be instructed to set his property in the grand list at $4,320.00, the valuation in effect for 1972, citing Bloomer v. Town of Danby, supra. We disagree. A presumption of validity and legality attaches to the actions of the listers. New England Power Co. v. Town of Barnet, supra, 134 Vt. at 507, 367 A.2d at 1369. When, in litigation under § 4467, the town introduces the appraisal of the taxpayer's property into evidence, the burden of going forward with the evidence to overcome the presumption resides with the moving party. Id. "When such evidence is presented, the presumption in favor of the listers `disappears and goes for naught.'" Id. It then becomes incumbent upon the town to produce evidence of fair market value, Schweizer v. Town of Pomfret, 134 Vt. 436, 438, 365 A.2d 134, 135 (1976), as well as evidence relative to the listed values of comparable properties within the town. New England Power Co. v. Town of Barnet, supra, 134 Vt. at 507, 367 A.2d at 1369. As discussed above, the taxpayer here has clearly demonstrated that the method used by the Listers of the Town of Danby to appraise his property is not valid. If, as in the Bloomer case, the Town had introduced no other evidence relative to fair market value and uniformity, the taxpayer would be correct in arguing that his property should be listed for 1973 at the 1972 value of $4,320.00. Here, however, the Town did introduce competent, probative evidence on these issues; thus Bloomer is distinguishable on this point. Based on the evidence submitted by the Town, and the evidence submitted by the taxpayer, at trial court in this de novo proceeding had both the power and the duty under 32 V.S.A. § 4467 to determine the fair market value of the taxpayer's property and to set that property in the list at a value corresponding to the listed value of comparable properties within the Town. The taxpayer's proper remedy is a new trial. Lastly, the taxpayer charges that the trial court erred in not allowing him to testify to the appraisal value placed on his adjoining property in the Town of Pawlet by the Listers of that Town, as part of the basis of his opinion of the fair market value of the subject property. Under 32 V.S.A. § 3431, the listers of each town are under a *1079 duty to appraise property at fair market value. If the adjoining property was comparable to the subject property, its fair market value would have been relevant to the fair market value of the Danby property, though not conclusive on that issue. The taxpayer should have been allowed to testify. With regard to this evidentiary issue, the record again reflects confusion by the trial court concerning the terms "fair market value" and "listed value." Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519513/	254 Pa. Super. 152 (1978) 385 A.2d 570 COMMONWEALTH of Pennsylvania v. Reginald LEWIS, Appellant. Superior Court of Pennsylvania. Submitted October 8, 1976. Decided April 13, 1978. 153 John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant. Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. PER CURIAM: This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, by the defendant-appellant, Reginald Lewis, after conviction in a non-jury trial of possession and delivery of a controlled substance; and from the denial of post-trial motions. The criminal complaint was filed on January 17, 1975. He was not arrested until May 16, 1975. On December 16, 1975, the defendant filed a petition for the dismissal of the charges against him for the failure of the Commonwealth to comply with the mandates of Pa.R.Crim.P. 1100. This was denied. He was tried and convicted non jury on January 12, 1976. There is no question that the 180 day rule was violated unless we accept the interpretation of the rule made by the court below. Rule 1100(a)(2) provides: "Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than 180 days from the date in which the complaint was filed." The rule is clear and unambiguous and in fact, in all our cases dealing with Rule 1100 our computation of the 180 day rule requirement began with the filing of the complaint. In Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1976) stands for the proposition that the period begins 154 at the time of the filing of a proper complaint. There is no contention in the instant case that the complaint was not proper. In Mumich this Court held that where a first complaint was dismissed, as improper, the time begins to run at the filing of a second proper complaint. See, Commonwealth v. Bean, 244 Pa.Super. 368, 368 A.2d 765 (1976); Commonwealth v. Wilson, 238 Pa.Super. 340, 357 A.2d 163 (1976). In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976) it was held by the Supreme Court in regard to applications for extension of time is determined by computing the time elapsed from the filing of the complaint less any periods which are properly excludable. See also, Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976) where it was held that the court may only grant extensions of time under the rule when the petition is filed prior to the expiration of 180 days after the filing of the complaint. The interpretation of the rule as made by the court below would circumvent the purpose of Rule 1100 to insure prompt trial. The practice in Philadelphia as explained by the court below is as follows: "In Philadelphia, the procedure is that after a complaint is signed, it remains in the hands of the police until the defendant is arrested and arraigned. It is at that point that the various copies of the complaint are distributed to the Court, the District Attorney and to the defendant. It is this Court's analysis of Rule 1100 that the Supreme Court in promulgating that rule intended and meant by the words, `When the complaint is filed,' to mean when the complaint is filed at the preliminary arraignment when the four copies of the complaint be dispersed and the defendant arraigned." There seems to to be no requirement as to the length of time the police may hold the complaint, and in the instant case the complaint was held from January 17, 1975, until his arrest on May 16, 1975. The defendant also complains about the court's charging him with a 28 day period of delay. This is now immaterial *155 because even with the 28 day credit to the Commonwealth, the 180 day period has been exceeded. The judgment of sentence is reversed and the defendant discharged. WATKINS, former President Judge, did not participate in the consideration or decision of this case. HOFFMAN and SPAETH, JJ., concur in the result.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519518/	118 N.H. 287 (1978) STEPHEN C. NAZZARO v. MERRIMACK SCHOOL DISTRICT & a. No. 78-004. Supreme Court of New Hampshire. April 25, 1978. 288 McLane, Graf, Greene, Raulerson & Middleton P.A., of Manchester and Robert E. Jauron (Jack B. Middleton orally), for the plaintiffs. Wadleigh, Starr, Peters, Dunn & Kohls, of Manchester (Allan Hall orally), for the defendants. GRIMES, J. The issues in this appeal are whether the plaintiff school teacher, Stephen Nazzaro, has the right to have a hearing and to have the school board state reasons for his failure to be renominated and reelected to a teaching position with the Merrimack School District. Plaintiff asserts that he qualifies for these rights either pursuant to RSA 189:14-a or to the due process clause of the fourteenth amendment and the New Hampshire Constitution. Plaintiff was a school teacher in the Merrimack School District during the school years 1973-74, 1974-75, 1975-76, and 1976-77. When the superintendent of schools, Mr. Leavitt, failed to renominate him for reemployment for the 1977-78 school year, the plaintiff requested a written statement of reasons for this action and a hearing before the school board. RSA 189:14-a. Plaintiff did not receive a written statement or a hearing. Subsequently he filed a petition for declaratory judgment and injunction, in which he sought a declaration that he was entitled to written statements of reasons and a hearing. Plaintiff also requested the court to enjoin the defendants from replacing him for the 1977-78 school year and to order the defendants to reinstate him. On July 13, 1977, following a hearing, the plaintiff's petition was denied. Goode, J., reserved and transferred plaintiff's exceptions to the finding, ruling, and decree. 289 Plaintiff moved to New Hampshire in the fall of 1973 and secured a New Hampshire teacher's certificate. He applied for full-time teaching and substitute teaching positions with several school districts. He served as a substitute teacher on a few occasions with the Merrimack School District during the fall of 1973. At some point, the plaintiff learned that two full-time teachers would be needed in the Reeds Ferry School to take the place of teachers who were leaving the school in mid-year. Plaintiff applied and interviewed for these two positions. The plaintiff was chosen to fill one of these openings. He received a letter from Mr. Leavitt dated February 5, 1974, officially notifying him that he had been hired. Plaintiff began teaching on February 25, 1974, after spending several days in the classroom to smooth the transition from one teacher to the next. The defendant school district follows a policy that any teacher who is hired during the year to teach in excess of ninety days is nominated by the superintendent, elected by the school board, and issued a contract under RSA 189:39 (Supp. 1975). A person so elected, nominated, and given a contract is credited by the school district with a full year's teaching experience for pay purposes, master's degree requirements, "tenure," and all the other benefits of the teachers' master contract. Anyone hired to teach less than ninety days is not elected, nominated, or given a contract under RSA 189:39 (Supp. 1975). Consequently he will not receive credit toward any of those benefits. Because the plaintiff worked less than ninety days in the 1973-74 school year, the superintendent did not nominate and the school board did not elect the plaintiff for those eighty-one days. The school district pursuant to its "90 day policy" did not grant him any credit for the days he taught in 1974. From February 25, 1974, until the end of the school year, plaintiff wrote lesson plans for each day's activities, attended teachers' meetings, tested the children, and functioned as a full-time teacher. Plaintiff was paid a scaled wage for a beginning teacher rather than the per diem rate of twenty-five dollars a day paid to a substitute. Plaintiff was also allowed some of the benefits available to teachers with contracts, including sick days and health insurance. Plaintiff was awarded contracts for the school years 1974-75, 1975-76, and 1976-77 after being evaluated in each of the prior school years. However, on March 4, 1977, before completion of his third year under contract, plaintiff received written notice from Mr. Leavitt that he would not be renominated for the 1977-78 school year. 290 Defendants assert that the plaintiff's eighty-one days of teaching in the 1973-74 school year without having been nominated, elected, or placed under contract pursuant to RSA 189:39 (Supp. 1975) should not be counted to determine if he were a teacher who had taught for three or more years under the provisions of RSA 189:14-a. RSA 189:14-a provides: Failure to be Renominated or Reelected. Any teacher who has a professional standards certificate from the state board of education and who has taught for one or more years in the same school district shall be notified in writing on or before March 15 if he is not to be renominated or reelected. Any such teacher who has taught for three or more years in the same school district and who has been so notified may request in writing within five days of receipt of said notice a hearing before the school board and may in said request ask for reasons for failure to be renominated or reelected. The school board, upon receipt of said request, shall provide for a hearing on the request to be held within fifteen days. The school board shall issue its decision in writing within fifteen days of the close of the hearing. RSA 189:39 (Supp. 1975) provides the method of choosing teachers: How Chosen. Superintendents shall nominate and school boards elect all teachers employed in the schools in their union, providing such teachers hold a valid educational credential issued by the state board of education. The trial court ruled that plaintiff was not protected under RSA 189:14-a. It construed the phrase "three or more years" as used in the statute as requiring three or more years of employment under contract issued pursuant to RSA 189:39 (Supp. 1975). The trial court ruled that plaintiff's employment status for RSA 189:14-a purposes did not begin until September 1, 1974. He therefore did not have the requisite three or more years on March 4, 1977, when he received notice of nonrenomination. [1, 2] When construing a statute, this court will look to both the legislative intent and the objectives of the legislation. Kinchla v. Baumner, 114 N.H. 818, 820, 330 A.2d 112, 113 (1974). In Spencer v. Laconia School District, 107 N.H. 125, 218 A.2d 437 (1966), we noted that this "legislation was designed in part to afford greater security to the teacher. By enacting it, the legislature ... concluded that the issue of renomination should not be left solely to the 291 decision of local authorities." Id. at 130, 218 A.2d at 441. The objectives of RSA 189:14-a are "to protect against unjust removal those teachers who have shown by educational attainment and by probationary trial their fitness to teach." Plymouth School Dist. v. State Bd. of Educ., 112 N.H. 74, 78, 289 A.2d 73, 76 (1972). [3] In Plymouth, two public school teachers were held entitled to the protection of RSA 189:14-a even though in five years they had not been nominated or elected once in accordance with the express provisions of RSA 189:39 (Supp. 1975). After reviewing the legislative history and looking at the language of RSA 189:14-a, the court found that "the legislature intended to create a general scheme of safeguards which was to apply to all teachers in public school districts of the State whether they were employed directly by a school board or otherwise." Id. at 78-79, 289 A.2d at 76; see McDonough v. Kelly, 329 F. Supp. 144 (D.N.H. 1971). We reaffirm our holding in Plymouth that teachers need not be nominated by the superintendent and elected by the school board under RSA 189:39 (Supp. 1975) to be entitled to the protection of RSA 189:14-a. We are unpersuaded by the defendants' argument that Plymouth is distinguishable from the instant case. In both cases the teachers were not nominated or elected. Yet, we held that the teachers in Plymouth were entitled to the procedural protection of RSA 189:14-a. We are not inclined to disregard, distinguish, or overrule the holding in Plymouth, but if we have misinterpreted the legislature's intent, the General Court should take appropriate action. State v. Ayres, 118 N.H. 90, 383, A.2d 87 (1978); Davis v. Manchester, 100 N.H. 335, 340, 126 A.2d 254, 258 (1956). We also note that the phrase "any such teacher" contained in the second sentence of RSA 189:14-a refers back to "any teacher who has professional standards certificate" in the preceding sentence of RSA 189:14-a. It does not refer only to a teacher who has been nominated or elected. The plaintiff has a professional standards certificate, and is therefore "any such teacher" referred to in the second sentence of RSA 189:14-a. Having determined that a teacher does not have to be nominated or elected pursuant to RSA 189:39 (Supp. 1975), we must determine whether plaintiff was a "teacher who had taught for three or more years." RSA 189:14-a. Under RSA 21:8, the term "year" is generally defined under our statutes to mean calendar year, unless otherwise expressed. Defendants argue that the word "years" in RSA 189:14-a means "contract years" despite the legislature's failure to draft the statute in terms of *292 contract years, school years, or otherwise. Because the legislature did not so qualify these words, the word "years" therefore means calendar years. [4] We have little trouble determining that plaintiff was a teacher as that term is used in RSA 189:14-a. Plaintiff was not merely a substitute. He was a full-time teacher with all responsibilities and duties of any other teacher in the Reeds Ferry School for the eighty-one days he worked in 1974. He was therefore a teacher who had taught from February 25, 1974, to March 4, 1977, and was entitled to the protection of RSA 189:14-a. In view of our interpretation of RSA 189:14-a, consideration of any other issues raised by the parties on this appeal is unnecessary. Exceptions sustained. All concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519537/	232 S.W.2d 857 (1950) F. W. WOOLWORTH CO. v. ELLISON. No. 2807. Court of Civil Appeals of Texas, Eastland. September 22, 1950. Rehearing Denied October 13, 1950. 858 Wagstaff, Harwell, Wagstaff & Alvis, Abilene, for appellant. Carl M. Anderson, Sweetwater, for appellee. COLLINGS, Justice. This is a suit for damages brought by appellee, W. H. Ellison, against appellant, F. W. Woolworth Company, for personal injuries alleged to have been sustained by appellee while removing trash from the basement of appellant's store. Appellee was an employee of H. T. Harris who had the contract to remove appellant's trash. As such employee, he entered the basement of appellant's store through a sidewalk entrance on the occasion in question and his injuries occurred when one of the heavy steel doors to such entrance was blown to, or otherwise closed, and struck appellee's arm. The case was tried before a jury and based upon its verdict, judgment was rendered for appellee in the sum of $2,500.00, from which F. W. Woolworth Company brings this appeal. Appellee Ellison alleged that for many years appellant had operated its business on the premises in question, including the basement which it held under a lease by which it was obligated to maintain same and the sidewalk and entrance thereto; that such sidewalk entrance was built by appellant and it was directed and required by appellant that its trash be removed through such entrance; that the entrance 859 into the basement through the sidewalk opening was covered when closed by two heavy steel doors, both of which opened upward, and steel chains were attached to each of said doors so they could not be let completely back against the sidewalk when opened, but were held up nearly perpendicular; that the force of a strong gust of wind could cause them to be blown closed; that the position and condition of the doors when so held open by the chains was extremely dangerous, particularly when the wind was blowing; that such danger was not appearent to an inexperienced and uneducated man such as appellee, who, in truth, did not know of such danger, but that appellant, its servants, agents and employees did know that the doors had blown shut and had knowledge of the dangerous condition of such entrance prior to the time of appellee's injury, or by the exercise of ordinary care and diligence should have known of such danger; that on November 4, 1948, while appellee was attempting to carry a load of appellant's trash out of its basement through such sidewalk entrance, one of the heavy steel doors which had been opened for this purpose, blew shut, striking and breaking appellee's left arm in several places and causing him severe pain and disability to work, to his damages in the amount of $2,995.00. Appellee alleged that appellant company was negligent (1) in not having some device to hold the doors open so they could not be blown closed when in use, and (2) in not providing an entrance into its basement for the purpose of picking up and hauling away its trash that was reasonably safe. Appellant, by way of answer, alleged that appellee had been using the entrance in question for more than three years, was thoroughly familar therewith and that the condition of such entrance was open, patent and obvious and that appellee knew, or in the exercise of reasonable care, should have known that the doors had chains fastened thereon to prevent them from laying back against the sidewalk and that appellee should have braced said doors or taken other precautions so as to prevent them from blowing to while he was using the entrance; and that if the entrance was not safe, such condition was open, patent and obvious and appellee knew, or in the exercise of ordinary care, should have known of such condition and was guilty of negligence in using same; that the unsafe condition of the entrance, if any, was brought about by the manner in which appellee used it. The jury found, in answer to special issues submitted (1) that appellant failed to provide a suitable rod or other means to hold the doors securely open while being used by appellee on the occasion in question, and that such failure was negligence and a proximate cause of appellee's injury; (2) that appellant failed to provide and maintain its sidewalk entrance in a reasonably safe condition for the purpose for which appellee was using it on the occasion in question and that such failure was negligence and a proximate cause of appellee's injury; (3) that appellee was not negligent in entering the doors without causing them to be braced; (4) that the unsafe condition of the entrance was not brought about by the manner in which appellee used same, and (5) that appellee was not negligent in failing to request appellant to supply him with suitable means to hold such doors open when he was using the entrance. Numerous witnesses were interrogated and their testimony is so lengthy that it is not practical to set it out in detail. It shows, however, that appellee, at the time of his injury, was 56 years of age, uneducated, and an employee of H. T. Harris, an independent contractor who had the contract to remove appellant's trash; that appellee had worked for Harris for about three years and prior thereto had worked for some time for predecessors of Harris in hauling trash from such premises; that the trash was required by appellant to be picked up in the basement near the chute or sidewalk entrance where appellant's employees always stacked or placed it to be carried away; that on the occasion of his injury, appellee went to appellant's store about 1:30 o'clock in the afternoon and opened the steel doors from the sidewalk and through such sidewalk entrance went 860 into the basement to remove the trash. The evidence indicated that the steel doors weighed about 100 pounds each. Pictures were introduced showing the doors closed flush with the sidewalk so that they became a part thereof, and also showing such doors open but held by chains so that they could not fall or lay back against the sidewalk but were held in a near upright position. Appellee testified that during the time of his employment he had used such entrance everyday, six days each week; that he had never seen anyone brace the doors prior to the time of his accident nor had he seen a steel rod with which the doors could be propped open. When asked if he had ever looked for such a rod, he stated that he did not know that one was used for that purpose; that if a rod had been there and he had known about it he would have used it. No one said anything to appellee about the doors being dangerous or blowing to on anybody. Several witnesses testified that they knew the doors might blow to if not braced. The witness Elzie F. Rowland, a postal employee, testified that he explained to appellant's store manager that he "thought the doors were dangerous"; that the doors were "a little off perpendicular * * it was ten or fifteen degrees off center, not 45. The wind blew the door to, almost caught my left foot. * * * I have opened those doors almost a hundred times to go down the steps but after I saw the wind blow it to I quit * * . It was too heavy to start with * * it was hazardous." Appellant contends that there was no evidence in the record that the entrance to the basement in question was not maintained in a reasonably safe condition and that if a dangerous condition was shown, such condition was shown by the undisputed evidence to be open, patent and obvious and well known to appellee, and based upon this contention, urges in numerous points that the court erred in refusing its motion for a preemptory instruction, and in submitting various special issues to the jury. Since these points relate to the same subject, they were properly discussed together in appellant's brief and we will so consider them here. Although the evidence was conflicting, the finding that appellant failed to provide a suitable rod or other means sufficient to hold the doors securely open while being used, was amply supported. The testimony as to the condition of the doors, their weight, the near perpendicular position in which they were held by the chains when open, the fact that they had been blown to previously and that appellant's store manager had been warned that the doors "were dangerous" is, in our opinion, sufficient to support a finding of negligence on the part of appellant which was a proximate cause of appellee's injury. Smith v. Henger, Tex. Sup., 226 S.W.2d 425, 431. The question of appellee's contributory negligence under the evidence was also a question of fact for the jury. Whether a dangerous condition is so open and obvious as to be negligence per se is not always easy to determine. As stated in the case of J. Weingarten, Inc., v. Brockman, Tex.Com.App., 135 S.W.2d 698, 699: "The facts of each case must be given independent consideration, and seldom are the facts of any two cases so identical as that the decision in one could be held to be authority for a like decision in the other." There is no doubt, under the evidence presented, that the doors were dangerous. The injury sustained by appellee, has, of course, conclusively established that fact. It is true, as contended by appellant, that appellee used the doors many time over a period of several years and had ample opportunity to observe their condition. This evidence raised an issue of fact as to appellee's negligence. We do not think, however, that it is conclusively shown that appellee realized or should have realized the dangerous condition which existed. If it should be held that he did know there was danger, we feel that the evidence does not show such imminent danger that he should be held guilty of negligence as a matter of law in using the entrance. Smith v. Henger, supra; McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442, 447; Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227; Gulf, C. & S. F. Ry. Co. v. Irick, Tex.Civ.App., 116 S.W.2d 861 1099; 30 Tex.Jur., page 764; Northcutt v. Magnolia Petroleum Co., Tex.Civ.App., 90 S.W.2d 632. Appellant further contends that the court erred in refusing to submit its specially requested issue No. 1 which was as follows: "Do you find from a preponderance of the evidence that the condition of the entrance to the basement of defendant's store was open, patent and obvious to the plaintiff at the time and on the occasion of his alleged accident?" In our opinion, this issue was not a proper one. It does not specify what condition of the entrance is in question but if we presume that the condition inquired about is the danger of the entrance, then the ultimate question of fact for jury determination was, whether appellee was guilty of negligence in using the entrance under the circumstances. This issue was submitted to the jury by the court in its main charge in special issue No. 8 thereof, which was as follows: "Do you find from a preponderance of the evidence that the plaintiff was negligent in entering the doors leading to the basement of defendant's store on the occasion in question without causing said doors to be braced to prevent their closing?" If the condition of the entrance, being known to appellee, had been so imminently dangerous that it could be held, as a matter of law, that a reasonably prudent and cautious person would not have used it without in some manner propping the doors open, then appellee's use of the entrance under the circumstances, would have been negligence per se. As hereinbefore stated, we do not feel that the degree of danger or the knowledge thereof shown in appellee was such as to constitute negligence as a matter of law. Any showing of danger or of knowledge thereof by appellee, less than that indicated, was a question of fact but not an ultimate fact issue. It was evidentiary to the ultimate fact issue of appellee's negligence, if any, in using the entrance under the circumstances. As indicated above, the issue of appellee's negligence was submitted in the court's special issue No. 8. Appellant urges that the court erred in refusing to submit its specially requested issue No. 2 which was as follows: "Do you find from a preponderance of the evidence that plaintiff assumed the risk of injury in using the doors in an unbraced condition at the time and on the occasion of the accident?" In our opinion, the court also properly refused the above requested issue. Since Ellison was not an employee of appellant company, the doctrine of assumed risk does not apply. West Texas Utilities Co. v. Renner, Tex.Com.App., 53 S.W.2d 451, 454; Portilla Drilling Co. v. Miller, Tex. Civ.App., 144 S.W.2d 936; Bridwell v. Bernard, Tex.Civ.App., 159 S.W.2d 981; Panhandle & S. F. Ry. Co. et al. v. Haywood, Tex.Civ.App., 227 S.W. 347, 352, Writ Ref.; 30 Tex.Jur., page 678. Appellant contends that the court erred in overruling its motion to set aside the verdict of the jury and declare a mistrial because the jury failed to answer special issue No. 15 of the court's main charge. The issue in question was as follows: "Do you find from a preponderance of the evidence that on November 4, 1948, while the plaintiff was using the sidewalk entrance to defendant's basement there was a brace rod sufficient to hold the doors of the entrance securely open available for plaintiff's use?" The above issue, although submitted to the jury, was not answered by them. Appellant urges that such issue was a material defensive one, and since it was not answered, the verdict of the jury was incomplete and that the court erred in rendering judgment based thereon and in overruling appellant's timely motion to set the verdict aside and declare a mistrial. We cannot agree with this contention. Special Issue No. 1 of the court's main charge, which was answered in the affirmative by the jury, was as follows: "Do you find from a preponderance of the evidence that the defendant failed to provide a suitable rod or other means sufficient to hold the doors securely open while being used by the plaintiff on November 4, 1948?" These issues are substantially the same. Issue No. 1 inquired if appellant 862 "failed to provide a rod" and issue No. 15 inquired if "there was a * * * rod * * * available." One of the issues is an affirmative submission and the other is a negative submission of the same fact question and the court was not required to submit both. Wichita Valley R. Co. v. Williams, Tex.Civ.App., 6 S.W.2d 439, Writ Ref.; Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314; Southern Underwriters v. Weldon, Tex.Civ.App., 142 S.W.2d 574, 576; Traders & General Ins Co. v. Maxwell, Tex.Civ.App., 142 S.W.2d 685, 691; Highway Ins. Underwriters v. LeBeau, Tex.Civ.App., 184 S.W.2d 671, 677. Since special issue No. 15 was not required to be submitted and since the matter therein inquired about was answered by the jury in its answer to special issue No. 1, the failure of the jury to answer special issue No. 15 was no bar to judgment. Baldwin v. Stamford State Bank, Tex.Civ.App., 82 S.W.2d 701; Texas Employers' Ins. Ass'n v. Derrick, Tex.Civ.App., 207 S.W.2d 199. Appellant also complains of the fact that the court overruled its objection to the testimony of the witness C. D. Stephens to the effect that there was no bar or brace rod to hold the doors open during the years 1929, 1930, and 1931, and that during such time he never saw or heard of there being a rod to hold the doors so they could not close. The basis of appellant's objection to this testimony was that it concerned matters too remote in time from appellee's injury on November 4, 1948 to be material thereto and was therefore inadmissible. Appellee, as plaintiff in the trial court, alleged that the sidewalk entrance, the doors thereto and the chains holding the doors open in the alleged dangerous condition, were all constructed and placed there by appellant and that appellant was negligent in not having a chain or other device to hold said doors so they could not blow closed when in use; that the trash had been carried through the doors in this condition for many years and that appellant knew or in the exercise of ordinary care should have known of the dangerous condition. The issue was sharply drawn by the evidence in the trial court as to whether a rod was available with which appellee Ellison could have braced the doors at the time of his injury. Appellee's contention was that no such rod was available and appellant's contention was that such a rod was and for many years in the past, had been available. The witness Stephens testified that when he first began hauling trash from appellant's store in 1929, the sidewalk doors had no chain on them but lay all the way back against the sidewalk when open; that some months thereafter, chains were put on the doors holding them up away from the sidewalk when open, and that during the remaining portion of the three years that he worked there, he never saw or knew of a brace rod used to hold them open. This testimony had relation to the subject matter in controversy as alleged by plaintiff and as the issues were drawn in the trial of the case, in that, it purported to show the absence of a rod with which the doors could be braced open from the very time that the chains were placed on the doors to hold them away from the sidewalk. The remoteness of the testimony objected to under the circumstances, in our opinion, went to its weight rather than its admissibility. Appellant especially urges that such testimony was too remote in view of the fact that the sidewalk entrance and the doors thereto had been "changed, altered and moved" after the time testified about by the witness Stephens. The testimony that there was a change in the location and condition of the basement doors was by the witness Walter Carter and came subsequent to the testimony of C. D. Stephens here complained of. Appellant's objection to the testimony of Stephens was not renewed after such testimony by Carter. In our opinion, the testimony of Stephens was admissible under the condition of the record at the time it was introduced. If it be held that the subsequent testimony of Carter conclusively showed a change of condition and thereby rendered the testimony of Stephens inadmissible, then appellant had the burden of renewing his objection thereto or moving to strike *863 and when he failed to do so, waived the matter. The judgment of the trial court is affirmed. GRISSOM, C. J., and LONG, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519564/	478 Pa. 108 (1978) 385 A.2d 1337 COMMONWEALTH of Pennsylvania v. James McCLENDON, Appellant (two cases). Supreme Court of Pennsylvania. Submitted January 11, 1977. Decided April 28, 1978. 109 Joshua M. Briskin, Philadelphia, for appellant. F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Jane Greenspan, Philadelphia, for appellee. Before EAGEN, C.J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ. OPINION MANDERINO, Justice. On May 19, 1975, in a trial by jury, appellant, James McClendon, was found guilty of murder of the second degree, arson, and related charges. Post-verdict motions were 110 denied, and appellant was sentenced to life imprisonment on the charge of second degree murder and to a concurrent term of ten to twenty years imprisonment on the arson charge. Appellant appealed his murder conviction to this Court, and his conviction for arson to the Superior Court, which transferred it here. Appellant contends that the trial court improperly expressed to the jury an opinion as to the proper degree of guilt and so worded its instructions that the jury had no choice but to find appellant guilty of second degree murder. We agree with appellant's contention, reverse the judgment of sentence for murder of the second degree, and remand for a new trial limited to the murder charge. Our disposition of this appeal leaves undisturbed appellant's conviction for arson. There is no dispute as to the facts. On November 18, 1974, appellant, for retaliatory reasons, threw four fire-bombs at or into decedent's home. Decedent and his wife were the only persons inside the house. Decedent's wife, who was working in the downstairs kitchen, successfully awakened the decedent who had been sleeping upstairs. She testified that with the living room already aflame, the decedent followed her down the stairs and into the kitchen, but when she reached the gate in the back yard, she turned around to discover that her husband had not continued out of the house. She returned inside and called for her husband, at which point he hollered down from the second floor, "I'm going to put my clothes on." His return upstairs proved fatal; rescuers discovered him there, dead from smoke inhalation and thermal burns of the body surface. We agree with appellant that the trial court's instructions to the jury, which consisted of the original charge and two responses to requests for additional instructions, not only impressed upon the jury the court's opinion as to the appropriate degree of guilt, but also effectively precluded the jury from returning any other verdict except second degree murder. 111 In its original charge, the court stated: "[I]f you find that the defendant committed arson and that arson was the cause of the death . . . he is guilty of murder of the second degree. If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that the arson was not a cause of the death of the decedent, you should consider the charges of third degree murder and voluntary manslaughter which I shall now define for you." Hence, the jury was instructed that it should not consider third degree murder or voluntary manslaughter unless it found that appellant did not commit arson or that the arson, if committed, was not the cause of death. That is not the law in this Commonwealth. The jury could have returned, pursuant to its mercy dispensing power or its awareness of extenuating circumstances, verdicts of either voluntary manslaughter or murder of the third degree even if it found appellant guilty of arson, and found that the arson caused the victim's death. Commonwealth v. Hill, 444 Pa. 323, 326, 281 A.2d 859, 860-61 (1971); Commonwealth v. Hoffman, 439 Pa. 348, 356-57, 266 A.2d 726, 730-31 (1970). See also Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617, 619-20 (1977). At the conclusion of the trial court's original charge, the following colloquy took place: "THE COURT: Gentlemen, are there any exceptions to the charge as already given? [Prosecuting Attorney]: I have no exceptions. THE COURT: Do you have any exceptions, [defense counsel], to the charge as given? [Defense Counsel]: Well, yes, your Honor. The one about voluntary manslaughter. I don't know the exact words but whether or not the decedent contributed to his own death would not be of any value. But I don't remember the exact wording. THE COURT: Well, the wording was that if the arson was the cause of the death, the defendant is guilty of second-degree murder. Even though the decedent may 112 have contributed to his own death. I believe that is the law. [Defense Counsel]: I will take exception to that. THE COURT: All right, is there anything else? [Defense Counsel]: No." Whether defense counsel's above objection to the original charge raised the same issue now being raised is not entirely clear from the above colloquy. The issue now being raised, however, was clearly raised when the jury returned for additional instructions. The court compounded the error in the original charge when it responded to the jury's first request for additional instructions. When the trial court was asked to repeat its instructions concerning murder of the second degree, murder of the third degree, and voluntary manslaughter, the trial court told the jury it could not find defendant guilty of arson and guilty of something less than second degree murder. "If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that the arson was not a cause of the death of the decedent, you should consider the charges of third-degree murder and voluntary manslaughter. Let me repeat that. If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that the arson was not a cause of the death of the decedent, then you should consider and only then you should consider the charges of third-degree murder and voluntary manslaughter which I shall now define for you." (Emphasis added.) After repeating the definitions of voluntary manslaughter and murder of the third degree, the trial court stated, "[I]f you find in this case there is an independent felony that the defendant beyond a reasonable doubt committed arson endangering persons, then these definitions [voluntary manslaughter and murder of the third degree] are not applicable and the definition of second degree murder which I have read to you is applicable." (Emphasis added.) 113 Defense counsel immediately excepted to these instructions. Counsel's exception was that the court's instruction was a mandate to the jury to find appellant guilty of murder of the second degree if it found him guilty of the arson charge. Defense counsel's exception, in effect, was that the trial court effectively told the jury not to consider any verdict but second degree murder if arson was committed. Defense counsel's motion for a mistrial was denied. Despite these unequivocal commands to the jury not to consider voluntary manslaughter or murder of the third degree if it found appellant guilty of arson and that the arson legally caused the death, the jury sent a second note to the court for additional instructions. The note read: "If the defendant is guilty of arson, which is a felony, can three and four be applied within third-degree murder and voluntary manslaughter?" In other words, the jury was still interested in the possibility of finding appellant guilty of arson yet not of second degree murder. Pursuant to Commonwealth v. Hill and Commonwealth v. Hoffman, supra, see also Commonwealth v. Whitfield, supra, the jury should have received an affirmative answer. Nevertheless, the trial court responded in the negative based on its own opinion that "logic" militated against these lesser verdicts. At a conference in chambers out of the hearing of the jury, the court discussed the jury's question with counsel as follows: "It seems to me the appropriate answer to that is if they found the defendant guilty of arson and the arson caused the death, then voluntary manslaughter and third-degree murder are logically out." When defense counsel objected to that assessment and remarked that such was not necessarily so, the court responded: "I think it is logic but it may not be in terms of mercy." Rather than inform the jury that it could find appellant guilty of arson yet find him guilty of something less than second degree murder, the court concluded its charge as follows: 114 "I am obliged first of all, to repeat to you that under the law the Court cannot direct a jury as to what verdict it will render. This has been traditionally within the province of the jury. However, I do believe that I can tell you what may logically be concluded on the basis of some of these other conclusions that are reached. If you have concluded that the defendant in this case is guilty of arson, or if you should conclude that the defendant is guilty of arson, and you also conclude that arson was the cause of the death of the decedent, then logically that excludes both third-degree murder and voluntary manslaughter. Under the law a defendant is guilty of second-degree murder at least if he is guilty of a felony and death results from that felony, even if the felony is not exclusive of the death. I don't know that I can put it any clearer than that. Perhaps I should add that under the law the crimes of third-degree murder and voluntary manslaughter are applicable to a situation where no independent felony, or one of the enumerated felonies, can be the cause of death. I think I am obliged to say to you that logically if you find the defendant guilty of arson, then he is guilty of at least second-degree murder. On the other hand, also, because of the way the Supreme Court has worded it, that verdict is entirely within your decision. I may not tell you what to do." (Emphasis added.) Viewing this charge as a whole, we believe the trial court's charge impermissibly infringed upon the exclusive province of the jury to determine the appropriate degree of guilt. Thus appellant was denied his right to be tried by an impartial jury. Although this Court has recognized the duty of the trial court to aid the jury in understanding and clarifying the issues to be resolved, a charge to the jury must be "fairly and temperately stated clearly leaving the jury free to reach its independent conclusion." Commonwealth v. Goins, 457 Pa. 594, 598, 321 A.2d 913, 915 (1974). In the present case, the jury was not left "free to reach its independent conclusion" on the proper degree of guilt. The 115 jury was first told they could consider third degree murder or voluntary manslaughter if and only if they found appellant not guilty of the arson charge or that the arson did not legally cause the victim's death. This was an erroneous instruction, for the jury indeed could have found appellant guilty of arson and murder of the third degree, or, arson and voluntary manslaughter. Commonwealth v. Hill, supra, Commonwealth v. Hoffman, supra. Although the trial court's final words to the jury may have been a retreat from the court's earlier position, the attempted retreat, couched as it was in rather cryptic terms, could hardly have dispelled the impression earlier communicated and repeated to the jury. Moreover, the jury could have interpreted the cryptic remarks to mean that it was up to the jury to decide the arson issue. At best, the trial court's parting remarks could only have further confused the very matter about which the jury was already confused when it twice returned for instructions. This case is on a much different footing than Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977), and Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976). Those cases held that under appropriate conditions, it is permissible for a trial court to comment as to the evidence to support a verdict of voluntary manslaughter. Commenting on the evidence presented is very different than instructing a jury first, that voluntary manslaughter (or murder of the third degree) was a permissible verdict only if the defendant is acquitted of the underlying felony, and second, answering the jury's question of whether it could find the defendant guilty of the felony yet guilty of voluntary manslaughter by telling the jury that it would be illogical to do so but, because of the way this Court "has worded it," the degree of guilt was theirs to decide. Since the trial court's instructions impermissibly influenced the jury's deliberation as to which verdict should be returned, appellant must be granted a new trial. Commonwealth v. McNeill, 462 Pa. 438, 341 A.2d 463 (1975); Commonwealth v. Coins, 457 Pa. 594, 321 A.2d 913 (1974); 116 Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972). Appellant also contends that the jury was improperly instructed as to the law of causation in criminal homicide. Our grant of a new trial on appellant's murder conviction makes it unnecessary to consider this issue. Judgment of sentence for murder of the second degree reversed and a new trial granted. Judgment of sentence for arson affirmed. LARSEN, J., filed a dissenting opinion in which NIX, J., joined. LARSEN, Justice, dissenting. I dissent. The majority continues to insist that trial judges give juries the option of finding a defendant guilty of voluntary manslaughter (provocation and passion) in all murder cases, even though there is no evidence of manslaughter. In the present case, there was only evidence of murder in the second degree (felony murder), but the majority states: "The jury could have returned, pursuant to its mercy dispensing power or its awareness of extenuating circumstances, verdicts of either voluntary manslaughter or murder of the third degree even if it found appellant guilty of arson, and found that the arson caused the victim's death." In effect, the majority is requiring a judge to tell a jury that not only does two plus two equal four, but it can, if the jury wishes, equal five. We instruct our juries to render a true and correct verdict based on the law (which should emanate from the facts) and facts presented at trial and neither sympathy nor passion is to influence them. Juries for centuries have been instructed, no matter how agonizing, to reach a true verdict. Juries are the guardians of truth. The majority wants juries to be able to render verdicts based on law which has nothing to do with the case so that the jury may, contrary to the facts, dispense "mercy". Mercy *117 is not the function of a jury truth is. We have enough "mercy giving" entities: a sentencing judge, the parole board, the governor, etc. Now the majority would have a jury leave the realm of truth and become enmeshed in the world of social engineering. This perverts one of the foundations of our democracy, i.e. the jury system. Any confusion by the jury in this case was due to this perversion. I, therefore, dissent.[1] NIX, J., joins in this dissenting opinion. NOTES [1] I adopt the legal rational set forth very ably by Mr. Justice Nix in his dissent in Commonwealth v. Michael Francis Anthony Manning, 477 Pa. 495, 384 A.2d 1197 (1978).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519568/	232 S.W.2d 501 (1950) MISSOURI STATE OIL CO. v. FUSE et al. No. 41584. Supreme Court of Missouri, Division No. 1. July 10, 1950. Motion for Rehearing or to Transfer to Overruled September 11, 1950. 502 Sylvan Agatstein, St. Louis, for plaintiff-appellant. Oliver F. Erbs, David R. Hensley, Hensley & Hensley, St. Louis, for third-party defendants-appellants. Harry C. Avery, St. Louis, for defendants-respondents. Motion for Rehearing or to Transfer to Court en Banc Overruled September 11, 1950. VAN OSDOL, Commissioner. In this action plaintiff sought a judgment and decree establishing a permanent easement on and across defendants' real property, and an order permanently restraining defendants from interfering with plaintiff's use. 503 Plaintiff and defendants acquired their respective lands from common grantors. Such grantors, Joseph Pessina and wife, were made third-party defendants, and the defendants as third-party plaintiffs sought recovery against (the grantors) third-party defendants for breach of the covenants of their warranty deed. The third-party defendants also filed a counterclaim seeking the relief of reformation of their deed to defendants (on the ground of mutual mistake) so as to express an exception of the easement which third-party defendants alleged was vested in plaintiff. The trial court found the issues and entered judgment in favor of defendants and against plaintiff on plaintiff's claim for the establishment of an easement, and for defendants as third-party plaintiffs against third-party defendants for $500 damages (attorney fees) on the third-party plaintiffs' claim for breach of the covenants of the thirdparty defendants' deed. Plaintiff and thirdparty defendants have appealed. This court has appellate jurisdiction of the case on the ground that "title to real estate" is involved. Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894; Wallach v. Stetina, Mo.Sup., 20 S.W.2d 663; Davis v. Lea, 293 Mo. 660, 239 S.W. 823. See also Chapman v. Schearf, Mo.Sup., 229 S.W.2d 552; Section 3, Article V, Constitution of Missouri 1945, Mo.R.S.A.Const. Art. V, § 3. We here note that this is not a case wherein the relief sought by a plaintiff is an order restraining the interference with an alleged existing easement, and wherein proof of title to the alleged easement is merely supportive of the prayer for the injunctive order. In such a case "title" is only collaterally or incidentally involved. Wallach v. Stetina, supra. In the instant case, the plaintiff has additionally sought the relief of an adjudication of the existence of an easementan interest in land in another's possession. It is true "title" in the sense of evidence of ownership of a fee simple estate is not in issue; but the relief sought is a decree establishing an easement, which easement would interfere with the absolute owners', defendants', right of exclusive and unrestricted possession and user, and which decree would amount to an adjudication of such an interest in defendants' real estate as would encumber the land and cloud the clarity of defendants' otherwise perfect fee simple title. The relief sought, if granted, would directly operate upon defendants' title "in some measure or degree." See Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, 776. Our case also differs from the appeal in a condemnation proceeding wherein (the antecedent perfect fee simple title in the landowner being conceded) the issue is not "title"the issue is on the right to take all or a part of the landowner'sconceded title. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372; Missouri Power & Light Co. v. Creed, 325 Mo. 1194, 30 S.W.2d 605. In 1936 third-party defendants, Joseph and Rose Pessina, acquired real property at the northeast corner of the intersection of Macklind and Bischoff Avenues in St. Louis. The tract had a frontage to the southward on Bischoff of 89 feet 6 inches, and extended northwardly along the east side of Macklind Avenue 162 feet 2 ¼ inches. In 1932 a brick building, used as a filling station, had been erected on the west side of the tract; and a residence building, facing Bischoff Avenue, was situate on the east side of the tract. Prior to their acquisition of the (89' 6" × 162' 2¼") tract, the Pessinas had operated the filling station, and they had occupied the residence property since 1938. February 13, 1946, the third-party defendants, Pessinas, by their general warranty deed, conveyed the west fifty feet of the tract to plaintiff, Missouri State Oil Company; and plaintiff through its lessees entered into possession of the filling-station property, and the operation of the filling station by plaintiff's lessees has been continued. June 11, 1946, the third-party defendants, by their general warranty deed, conveyed the east 39 feet 6 inches of the tract to defendants (third-party plaintiffs), Frank Fuse and wife; and defendants entered into possession of the residence property. Neither of the warranty deeds in any way mentioned any easement appurtenant to the filling-station property. Since the filling station has been operated, westbound 504 patrons of the filling station have been passing across the southwest corner of the residence property upon and over a triangular concrete-surfaced extension of the concrete-surfaced apron or driveway approach from Bischoff Avenue to the gasoline pumps situate in front of and to the southware of the filling-station building. The triangular extension of the driveway approach is 10 feet at its base (along the north side of Bischoff Avenue), with its west side extending northwardly 15 feet along the west line of the residence property and with its concavely-curved hypotenuse of about 18 feet delineated by a concrete retaining wall or curb varying from about 2 to 2½ feet in height and apparently about 6 inches in width, but which wall or curb, at its southeast end, declines in height and ends at the level of the sidewalk at the north sidewalk line. The retaining wall or curb retains the higher ground of that part of the residence property to the northeastward. As stated, the triangular extension has been so constructed and maintained since the filling station has been operated. January 19, 1946 (prior to the execution of the warranty deed by the Pessinas, thirdparty defendants, to plaintiff in February 1946), the Pessinas, vendors, had executed their "Receipt For Earnest Money" to plaintiff, purchaser, reciting the money received was part of the purchase money for the filling-station property (50' × 162' 2 ¼") which the vendors undertook to convey by warranty deed to plaintiff. By an attached "rider" the Pessinas, vendors, further agreed "to grant and convey to purchaser a permanent easement over and across the southwest corner of his adjoining property to the east of the hereinabove described real estate coinciding with the present paved driveway giving access to the conveyed property; which easement shall be surveyed before the closing of this transaction and pursuant thereto specifically described to the satisfaction of the parties." The survey mentioned was not completed until June 12, 1946, just after the conveyance of the residence property (39' 6" X 162' 2¼") to defendants, Fuses, had been completed, June 11, 1946. No express grant of the stipulated easement has been made by the third-party defendants to plaintiff, and no mention was made of any easement in the deed of February 13th. Yet it might be argued that plaintiff, by the "rider" attached to the contract of purchase, acquired a right or interest in the residence property, more particularly in the triangular area, as against the Pessinas, third-party defendants, which right, although not evidenced by an actual grant and not cognizable by a court of law, was enforceable in a court of equity as against the vendors, Pessinas, third-party defendants. 58 C.J., Specific Performance, § 242, p. 1031; Louisville & N. R. Co. v. Nelson, 145 Ga. 594, 89 S.E. 693; Apsey v. Nash, 229 Mass. 77, 118 N.E. 180; Bailey v. Agawam National Bank, 190 Mass. 20, 76 N.E. 449, 3 L.R.A.,N.S., 98, 112 Am. St. Rep. 296. The third-party defendants have not denied such equitable right in plaintiff; have alleged an easement in plaintiff; and, as stated supra, have sought a decree of reformation of their deed to defendants on the alleged ground the failure to expressly except an easement from the covenants of their conveyance to defendants was due to mutual mistake. Obviously, the contract to convey the easement has not been consummated by a grant. Defendants had no constructive notice by any recordation of the contract to convey a right of user appurtenant to the filling-station property, nor is it shown defendants had actual notice of the contract; and, as stated, the third-party defendants made no express grant of an easement in their conveyance to plaintiff, and made no express exception of any right of such a user in their conveyance to the Fuses, defendants. Yet the physical condition of the property indicated it was affected by a use. The obviously permanent nature of the improvement and the visible character of the user were sufficient, it is contended, to suggest to a purchaser of the residence property that such property was subject to a servitude. And it is not here said that defendants would not have had notice of and taken subject to an easement of passage over the triangular area, if there were a valid 505 easement by grant express or implied. (In this case we are not concerned with any question of prescriptive user.) Defendant-respondent, third-party plaintiff, Frank Fuse, testified that, prior to the negotiations for the purchase of the residence property, he inspected the property. Joseph Pessina, third-party defendant, showed him the location of the property lines, including the west boundary line. Pessina did not "say anything about an easement." Defendant Fuse had lived about three blocks from the property for twelve years and had passed the residence property "numerous times." He had seen the paved triangular area, and the retaining wall extending "practically to the center walk that led from the sidewalk to the front door" of the residence building. He made no inquiry of Pessina or plaintiff relating to "what right they had to go across the front of the property"; he had known "for a great many years that the property was being used that way"; and he had known "for years" that "this retaining wall and this part of the driveway was so constructed." He "didn't ask a word" until about "six months after we bought the house." Pessina then said "there was an easement on it." Pessina testified that, during the negotiations for the sale of the residence property to defendants, he showed them the property line and "explained the easement to them at that time." Pessina employed the scrivener to prepare the conveyance to defendants. The scrivener testified he was "almost sure nothing was said" about the easement. (While the third-party defendants, appellants, have not assigned error of the trial court in failing to render a decree reforming their deed to defendants, we may here say we believe the evidence does not justify a decree of the reformation of such conveyance on the ground of mistake. It was not clearly proved the parties to the conveyance had the common intention that an easement was to be excepted from the covenants of the conveyance, and so it should not be said the exception was omitted because of mutual mistake. See generally, 53 C.J., Reformation of Instruments, § 60, pp. 945-947.) It is urged by appellants that the rule quoted by this court in Missouri Power & Light Co. v. Thomas et ux., 340 Mo. 1022, 102 S.W.2d 564, 566, from Pomeroy, Executor, v. Chicago & Milwaukee Railroad Company, 25 Wis. 641, at page 643, is applicable. The rule is as follows, "Where there is a sale of a tract of land upon which there is an obvious existing easement or burden of any kind, like an ordinary highway, a railroad, or mill-pond, the fair presumption, in the absence of any express provision in the contract upon the subject, is, that both parties act with direct reference to the apparent existing burden, and that the vendor demands, and the purchaser pays, only the value of the land subject to it. This presumption is independent of the question whether the party enjoying the easement has perfected his title as against the vendor or not. Nothing being said upon the subject, they deal with the property in its existing condition, and upon the assumption that it is subject to all the burdens to which it appears to be subject." We consider the rule inapplicable here. In Missouri Power & Light Co. v. Thomas et ux., supra, the defendants had purchased at a sheriff's sale in partition. The facts may have justified a finding that the plaintiff was vested with title to an easement by prescriptive user; and the purchasers, defendants, did not acquire the property by a conveyance with covenants of title. In any event, the quoted Wisconsin rule, we believe, is only applicable where there is an existing easement by grant, express or implied. The general application of the rule stated by the Supreme Court of Wisconsin would compel the general recognition of a corollary rule as follows, "that purchasers of property obviously and notoriously subjected at the time to some right of easement or servitude affecting its physical condition, take it subject to such right, without any express exceptions in the conveyance; and that the vendors are not liable on their covenants by reason of its existence." Kutz v. McCune, 22 Wis. 628, 99 Am.Dec. 85. This may be the law of Wisconsin, but it is not the law of Missouri. See now Kellogg v. Malin, 50 Mo. 496, 11 Am.Rep. 426, and 62 Mo. 429; Williamson 506 v. Hall, 62 Mo. 405; Whiteside v. Magruder, 75 Mo.App. 364; Farrington v. Tourtelott, C.C., 39 F. 738; 14 Am.Jur. Covenants, Conditions and Restrictions, § 105, pp. 551-552. Appellants, plaintiff and third-party defendants, further contend the facts demonstrate an easement was created by implied grant. At the outset it may be stated that the tendency of the courts, as a general rule, is to discourage implied grants of easements, since the obvious result, especially in urban communities, is to fetter estates, retard buildings and improvements, and violate the policy of recording acts. 17 Am.Jur., Easements, § 32, p. 944; Schnider v. M. E. H. Realty Inv. Co., 239 Mo.App. 546, 193 S.W.2d 69. However, the following principle of the law of implied easements is quoted, "Where the owner of land has, by any artificial arrangement, effected an advantage for one portion, to the burdening of the other, upon a severance of the ownership, the holders of the two portions take them, respectively, charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance of the portion first granted." Lampman v. Milks, 21 N.Y. 505; Hall v. Morton, 125 Mo.App. 315, 102 S.W. 570, 572. It has been said this principle applies to ways. Greisinger v. Klinhardt, 321 Mo. 186, 9 S.W.2d 978. The benefit must be reasonably necessary to the enjoyment of the dominant estate, and apparent at the time of the severance by the original owner. Foxx v. Thompson, 358 Mo. 610, 216 S.W.2d 87; Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797; Greisinger v. Klinhardt, supra; Bussmeyer v. Jablonsky, 241 Mo. 681, 145 S.W. 772, Ann.Cas.1913C, 1104. We are of the opinion that the evidence does not sustain the theory of an easement by implied grant. The triangular area is not a way of necessity, nor is it, under the evidence, essential to the operation of the filling station; and, we believe it is not necessary to the reasonable use and enjoyment of the filling-station property, even though it may be considered a great convenience. It is true that automobiles approaching from the east on Bischoff Avenue will be required to turn to the right more acutely if the triangular extension is not to be utilized; however, photographs introduced into evidence indicate there is sufficient space for the approach of westbound automobiles to the filling-station pumps, although an automobile is shown in each of the photographs to be parked on the triangular extension. The defendants introduced evidence tending to show that patrons of the filling station frequently parked their automobiles on the triangular extension, and that other patrons westbound on Bischoff Avenue nevertheless drove to the pumps for the servicing of their cars. One of the lessees of plaintiff testified that, after cars are serviced, they are often parked on the triangular extension, and "even with cars parked there * * customers still can get in and out that apron." Moreover, there are gasoline pumps, not in use, on the south (Macklind Avenue) side of the filling-station property, which pumps, we infer, could be easily made available for service. As we have said, the triangular extension is a convenience; and patrons of the filling station have frequently passed over the extension. The extension enables automobiles to approach from the street in a more sweepingly easy turn than if it were not used; yet, as stated, there appears to be adequate space available without passage over the disputed area. The principle of the law of implied easements is applicable when the easement is necessary; the rule is not one of absolute or strict necessity, but of reasonable necessitythe benefit must be reasonably necessary to the enjoyment and use of the dominant estatebut the rule is nevertheless one of necessity, not of convenience. Foxx v. Thompson, supra, and other cases cited in the preceding paragraph. The trial court correctly found against plaintiff-appellant on its claim for an easementthe defendants successfully defended plaintiff's action. But the Pessinas, although summoned as third-party defendants, not only did not defend defendants' title, but joined with plaintiff in asserting and undertaking to prove there was a valid easement in plaintiff. While no case directly in point has been cited, compare *507 Hazelett v. Woodruff, 150 Mo. 534, 51 S.W. 1048, we are of the view that, by asserting an easement was vested in plaintiff in derogation of the covenants of their deed, the Pessinas acted in violation of the covenants of their deed. Although by their deed they had undertaken to warrant and defend defendants' title against "lawful" claims, the Pessinas, in effect, alleged and undertook to prove that plaintiff's claim was lawful; so it would seem to us that, on the question of attorney fees, the trial court justly found and rendered judgment for defendants against the third-party defendants for attorney fees reasonably incurred by defendants in the defense of the action. The trial court's judgment and decree should be affirmed. It is so ordered. LOZIER and ASCHEMEYER, CC., concur. PER CURIAM. The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519614/	385 A.2d 1080 (1978) Eileen B. KAUFMAN v. DEPARTMENT OF EMPLOYMENT SECURITY. No. 190-77. Supreme Court of Vermont. April 4, 1978. 1081 Eileen B. Kaufman, pro se. Michael F. Ryan, Montpelier, for defendant. Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ. PER CURIAM. The appellant, Eileen Kaufman, filed for unemployment compensation. After hearing, the claims examiner found that she had been discharged for misconduct and disqualified her for benefits from the week ending November 27, 1976, through the week ending January 15, 1977. From this determination Ms. Kaufman appealed to the referee, who gave notice of a hearing concerning "Discharge from Employment." A hearing was held, findings made, and the appeals referee sustained the determination of the claims examiner. Ms. Kaufman appealed to the Board on their form D-150 (6/74) citing as the reason for disqualification "Discharge for Misconduct Section 1344." In a written appendix setting forth her differences with the findings of the appeals referee, appellant asked the board to find that "my actions did not amount to misconduct under 21 V.S.A. 1344." The board, after notice, held a hearing. They also made findings of fact. From such findings, they concluded that "claimant was not discharged for misconduct but rather she left her last employing unit voluntarily without good cause attributable to such employing unit." Their decision modified the referee's decision and disqualified the appellant "for the week ending November 27, 1976 and until she has earned wages in excess of six times her weekly benefit amount. Such disqualification shall not extend beyond the week ending March 5, 1977." The new penalty was substantially harsher than that handed down by the claims examiner and sustained by the referee. 1082 Appellant here contends that the board's decision changing the characterization of her termination from discharge for misconduct to voluntary quit was a deprivation of due process as guaranteed by the Constitutions of Vermont and the United States. The board has the power to affirm, modify or reverse the decision of the referee. 21 V.S.A. § 1349. In the exercise of this function, however, it cannot violate fundamental principles of fairness. 21 V.S.A. § 1351. A fair hearing requires either proper notice of the issues to be heard or a basis in the record to show an informed and intelligent waiver of the same. Lewis v. Hot Shoppes, 211 So. 2d 20, 21 (Fla. Dist. Ct. App. 1968); see Morgan v. United States, 304 U.S. 1, 58 S. Ct. 999, 82 L. Ed. 1129 (1938); Aiken v. Malloy, 132 Vt. 200, 209, 315 A.2d 488, 493 (1974). The hearing before the Board could encompass only the issues framed by the pleadings. The correctness of the claims examiner's and appeals referee's findings that appellant had been discharged for misconduct was the only issue submitted to the Board for its determination. When the board departed from this issue and concluded that appellant's employment was terminated by voluntary quit without giving notice to the appellant that such a conclusion was being considered, it deprived appellant of the opportunity to make a countervailing argument. This was a denial of a fair hearing. Lewis v. Hot Shoppes, supra, 211 So. 2d at 21. Vacated and remanded for further proceedings in accordance with this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519613/	522 F. Supp. 1283 (1981) Arthur HILL, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants. No. 77 Civ. 3294 (JMC). United States District Court, S. D. New York. September 3, 1981. 1284 1285 Legal Action Center for the City of New York, Inc., New York City (Margaret K. Brooks, Catherine H. O'Neill and Paul N. Samuels, New York City, of counsel), for plaintiff. John S. Martin, Jr., U. S. Atty., S. D. N. Y., New York City (Richard N. Papper, Asst. U. S. Atty., New York City, of counsel), for defendants. OPINION CANNELLA, District Judge: After a trial on the merits of plaintiff's amended complaint, the Court finds for defendants. The amended complaint is dismissed. FACTS Plaintiff Arthur Hill, a black man, alleges that the former policies and practices maintained by defendants, the United States Postal Service and several of its officials, respecting the employment of individuals with criminal records, discriminated against him in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the due process clause of the fifth amendment.[1] Hill and three other Postal Service applicants, Earl Sutherland, Anthony Ferruzzi and Darryl Robertson, who had been denied employment allegedly on the basis of their prior convictions, commenced this action on July 7, 1977.[2] At that time, Postal Service policies and procedures governing the assessment of suitability of applicants were contained in a revised Personnel Handbook, Series P-11 [the "Handbook"], which provided in pertinent part: 313.2 Partial List of Reasons Which May Disqualify Eligibles In making selections for any type of accession, determination must be made whether an eligible or applicant might be disqualified for reasons such as the following: a. Dismissal from prior employment for cause. b. Criminal or other conduct of such nature which, if engaged in by a postal employee, would undermine the efficiency of the Postal Service. 1286 c. Intentional false statements, deception, or fraud in examination or appointment. d. Refusal to furnish requested testimony or information to the Postal Service, or the appointing officer, which has been requested pursuant to applicable laws, rules and regulations. e. A history of habitual use of intoxicating beverages to excess. f. Abuse of narcotics or dangerous drugs. g. Reasonable doubt as to the loyalty of the eligible to the Government of the United States. h. Conviction of theft or embezzlement. i. Conviction of crimes of violence, including assault with a deadly weapon. j. Any legal or other disqualification which makes the applicant unfit for the Postal Service. 313.4 Criminal Convictions .41 Use of Arrest Records .411 Arrests for criminal charges should be given no consideration in evaluating an applicant for employment, if the charges have been dismissed, if there has been an acquittal, if the proceedings have otherwise not resulted in a conviction, or where the record of such charges does not contain or reflect an actual conviction on such charges. .412 No inquiries should be made, either orally or in writing, of the applicant or of any other person, concerning arrest records, except where the arrest actually resulted in a criminal conviction, or where the charges are still pending. In addition, when inquiring as to the conviction record of any applicant for employment from any person or agency, including law enforcement agencies, postal officials shall state orally, or in writing, that: It is not the policy of the U.S. Postal Service to inquire into the arrest records of applicants for employment, where the charges arising out of an arrest have been dismissed, there has been an acquittal, the proceedings have otherwise not resulted in a conviction, or where the record of such charges does not contain or reflect an actual conviction of such charges. If possible, please exclude all such charges in the requested conviction record, except those still pending. .413 Appointing officials are not prohibited from considering or inquiring into criminal charges pending against any applicant. If the appointing official receives any records or information where the deposition of a criminal charge is not adequately reflected, or where the charge is still pending, the applicant is to be given an opportunity to explain the surrounding circumstances of the charges and whether the charges have been terminated in his or her favor. .42 Serious Crimes Where the eligible has been convicted of a serious crime, such as a felony involving an act of violence, armed robbery, assault with a dangerous weapon, arson, etc., or a series of minor crimes (misdemeanors), additional inquiry should be made: a. If the application form is incomplete or contains false statements or unaccounted periods or an otherwise poor record, the appointing official must make further checks. b. If the applicant has been imprisoned and/or placed on parole, the warden, or officer in charge of the institution(s) involved should be queried regarding the eligible's conduct, cooperation, progress toward rehabilitation, etc. Similarly, parole officers and social service workers or agencies should be questioned regarding cooperation, attitude, problems, if any, progress toward rehabilitation, and employability. .43 Conviction Records After reviewing all available information concerning the eligible, the following actions will be taken: a. If the applicant's conviction record contains only one minor incident (misdemeanor) the appointing officer may make the appointment. b. If the applicant's conviction record shows that, in recent years, the individual has been convicted of a felony or of a misdemeanor involving acts of violence or dishonesty, or of an unusual number of 1287 misdemeanors, the applicant should normally be removed from the register. If, for any reason, the installation head believes that special consideration should be given to the applicant, the entire file should be submitted by him/her to the Regional Director of Employee Relations with reasons for recommending appointment. If the said regional authority concurs with the recommendation of the installation head, the regional authority will authorize the appointment. c. If criminal charges are pending against an applicant, and conviction would make the applicant unsuitable, no action should be taken on the application until the charges are resolved.[3] Plaintiffs contended that the above policy respecting persons with criminal records resulted in the automatic exclusion of persons 1288 with felony or serious misdemeanor convictions and thus was not rationally related to the applicant's ability to perform satisfactorily as a postal employee. They also contended that the policy had a significant and disproportionate impact on minority group members since, in proportion to their representation in the general population, minorities are allegedly more often arrested and convicted of crimes than non-minorities. Thereafter, the parties entered into settlement discussions which culminated in Judge Pierce's approval of a Consent Order and Judgment (filed July 27, 1979) [the "Consent Order"]. The Consent Order provides in pertinent part that within six weeks from the entry thereof the Postal Service would circulate revised employment standards, agreed upon by the parties,[4] governing applicants with criminal records, and 1289 that within ten days from entry thereof the Postal Service would offer Robertson, Sutherland and Ferruzzi immediate employment with the Postal Service. The Consent Order 1290 further provides that "[w]ithin thirty (30) days from the date of entry of this Order, plaintiffs shall file an amended complaint setting forth claims for relief and the basis for such claims of plaintiff Arthur Hill." Id., ¶ 5.[5] On August 24, 1979, Hill filed his amended complaint wherein he restates his claims that the defendants' former policies and practices regarding the employment of individuals with criminal records violated Title VII and the fifth amendment. Hill seeks declaratory relief, reinstatement, back pay and retroactive benefits. The trial of this action was held on April 30 and May 4, 1981. The evidence adduced at trial established that the Postal Service first employed plaintiff as a temporary mail handler at the New York General Post Office ["GPO"] from February 26, 1958 until he resigned on May 6, 1960. See Court's Exhibit 1, ¶ 1(a). At the time of plaintiff's resignation, the Postal Service had authorized his removal on charges of tardiness and being absent without permission from January 24, 1960 to February 9, 1960. See Transcript of Proceedings at 29-31, Hill v. United States Postal Service, et al., 77 Civ. 3294(JMC) (dated April 30 and May 4, 1981) ["Tr."]; DX A at 173, 203-04, 211, 214, 217, 223. Thereafter, the Postal Service employed plaintiff from March 4, 1961 to May 26, 1962 as a mail handler in the Brooklyn Post Office. He resigned this position to return to school. Tr. at 31. On August 19, 1963, plaintiff was again employed as a mail handler at GPO. On May 21, 1964, the Postal Service notified plaintiff of his proposed removal based upon charges that he had been tardy thirteen times in April and that he had threatened to break his supervisor's legs when the supervisor allegedly went to his home to investigate plaintiff's absence from work on May 16 through May 19, 1964. See Tr. at 32-36; DX A at 137-38. Although Hill denied threatening his supervisor, see DX A at 128, both charges were sustained, see DX A at 116. Nevertheless, rather than firing Hill, the Postal Service extended leniency to him by issuing a letter of reprimand. Tr. at 36. In addition, the Postal Service had previously given plaintiff notice of removal or disciplinary action for failure to pay certain debts on February 25, 1964 and letters of warning were issued for the same charge on November 4 and December 6, 1963 and January 6 and February 11, 1964. See Tr. at 37; DX A at 149, 154. Moreover, plaintiff received letters of warning for tardiness on March 4, April 30 and May 5, 1964. Tr. at 38; DX A at 211-12. Plaintiff resigned from his position on June 21, 1964. The Postal Service once again employed plaintiff in 1967 through December 9, 1968.[6]See Court's Exhibit 1, ¶ 1(d)-(h). During this period, Hill passed the necessary qualifying 1291 examinations and was employed as a motor vehicle operator ["MVO"] and a tractor trailer operator. On April 19 and 23, 1968, plaintiff reported for work but refused to perform his assigned runs, stating that the tractor trailers assigned to him were defective. The tractor trailers, however, were found to be in good working condition. On June 20, 1968, after being examined at the United States Postal Service Hospital and diagnosed as having a paranoid personality, plaintiff was found to be unfit for duty. See DX B at 64. Accordingly, on September 3, 1968, the Postal Service sent plaintiff a notice of proposed separation, see DX B at 39, which became effective December 9, 1968, see DX B at 81. Plaintiff then appealed his removal to the Civil Service Commission ["CSC"]. The CSC reversed the discharge because the notice of proposed separation did not give plaintiff sufficient notice that the reason for his discharge was his unfitness for duty due to his mental illness rather than his conduct in refusing to operate the tractor trailers. See Tr. at 41-42; DX B at 67-69. Therefore, on June 16, 1969, the Postal Service notified plaintiff that he could report for reinstatement. DX B at 70. By that time, however, plaintiff had been arrested for manslaughter in the first degree for the death of his child. Plaintiff later pleaded guilty to criminally negligent homicide, see Tr. at 42, and served ten months of a three-year sentence.[7] The Postal Service then removed plaintiff for conduct unbecoming a postal employee. DX A at 1. After plaintiff was released from prison in August 1970, he applied for reinstatement at the GPO, at which time he disclosed his conviction. He was interviewed and subsequently received a letter informing him that he would not be reinstated because of his past Postal Service record. See Tr. at 42-43; PX 1, DX B at 12. Nevertheless, after passing the necessary examination, plaintiff applied for the position of MVO in 1972, again disclosing his conviction. See DX B at 16, 19. Personnel clerk Rudolf Covino interviewed plaintiff on March 16, 1972. On March 20, 1972, plaintiff was notified that he would not be hired. See PX 2; DX B at 84. Plaintiff testified that no one ever told him that his conviction was the reason he was not reinstated in 1970 or hired in 1972, see Tr. at 42, 44, and in fact the 1970 denial of reinstatement specifically referred to his past service record. With respect to Hill's 1972 application, however, an index card file kept in the personnel office[8] and a notation on Hill's interview call-in notice[9] refer to his criminal record. See DX B at 15, 20, 88. Hill did not administratively appeal either of these decisions until 1976 and claims he was never informed of his right to do so.[10] 1292 In March 1976, plaintiff applied for a tractor trailer operator position at the Hicksville, New York Post Office and he disclosed his conviction in that application as well. See DX C at 7-10. He was hired on May 13, 1976 as a temporary tractor trailer operator, see DX C at 11, but was terminated on May 19, 1976 because of unsatisfactory performance. DX C at 12. Thomas J. Cotter, the Manager of Motor Vehicle Operations at Hicksville at the time, testified that plaintiff's trip ran late on two consecutive nights and that plaintiff had been found eating hamburgers in a Burger King restaurant during one such late trip. When Cotter questioned plaintiff about his conduct on May 19, 1976, plaintiff began to rant and curse. Cotter nevertheless advised plaintiff that his employment was terminated effective immediately and asked for his badge and government driver's license. Plaintiff threw the badge past Cotter's head, threw the license on the floor and left. Tr. at 113-14. Cotter reported this incident to the Postal Service Director of Employee and Labor Relations on May 20, 1976. DX C at 12. Thereafter, plaintiff passed the examination for the position of custodial laborer and applied for that position at the Jamaica Post Office. On October 5, 1976, plaintiff was given a pre-employment interview by Albert Chiarella, a personnel clerk at the Jamaica Post Office. See Tr. at 80. At that time, plaintiff filled out a form which revealed his conviction. Tr. at 26-27, 45. His conviction, however, was not discussed during the interview. Tr. at 46. When he was not notified of the status of his application by November, plaintiff telephoned the Jamaica Post Office and spoke to an individual that he thought was Chiarella. Plaintiff testified that he was told that he would not be hired because of his conviction. Tr. at 46.[11] Previously, on January 31, 1976, plaintiff had filed an informal complaint with a Postal Service Equal Employment Opportunity ["EEO"] Counselor, alleging that the sole reason he was denied reinstatement in 1970 and denied employment on March 20, 1972 was a Postal Service policy against hiring individuals with criminal records. He contended that the policy constituted a continuing discriminatory practice because of its disproportionate impact on minorities. See DX B at 9-10. Plaintiff filed his formal complaint of discrimination on February 27, 1976. See PX 3. On June 22, 1977, John G. Werner, the Acting Manager, EEO Branch, Northeast Region, sent a "Notice of Proposed Disposition of Discrimination Complaint" to plaintiff. This notice states that plaintiff's allegations of racial discrimination were not supported because race was not a factor in the Postmaster's determination of his unsuitability: Six (6) Motor Vehicle Service employees (Four (4) Black and two (2) Caucasian) were removed for conduct unbecoming a postal employee because of the imposition of penal sentences. All of their applications for rehire were reviewed and given unfavorable consideration on the ground of their individual unsuitability for rehire purposes, in the opinion of the Postmaster. Race was not a factor considered in making those determinations. PX 4. On April 4, 1978, Charles Scialla, the Regional Director, Employee and Labor Relations, United States Postal Service, informed plaintiff that the Proposed Disposition was adopted as the final agency decision. See PX 5. On December 3, 1976, plaintiff filed a second informal complaint with an EEO counselor alleging that he was denied employment at the Jamaica Post Office in November 1976 because of the Postal Service policy against hiring individuals with criminal records and that this policy constituted a continuing discriminatory practice because of its disproportionate impact on minorities. See PX 6. At trial, plaintiff 1293 testified that he met with an EEO counselor who told him and his lawyer that he was not hired because of his conviction. See Tr. at 28. The counselor, Eugenio Castro, also asked plaintiff to submit additional information concerning his conviction. Plaintiff complied with this request,[12] but Castro's report indicates that the Manager of Employee and Labor Relations at the Jamaica Post Office found that plaintiff's application still did not meet the requirements for hiring. See PX 7; DX B at 101. The report further indicates that Castro interviewed the Employment Officer at the Jamaica Post Office, Chiarella's superior, who stated that the procedures contained in section 313.42 of the Handbook had been followed in processing Hill's application. However, Chiarella, when interviewed, stated that he informed plaintiff of the Postal Service policy prohibiting the employment of an individual with a criminal record. See PX 7 at 2; DX B at 101. On April 20, 1977, plaintiff filed his formal complaint of discrimination. See PX 9; DX B at 97-98. By letter dated December 28, 1979, the Regional Director of Employee and Labor Relations informed plaintiff that his complaint had been cancelled for failure to prosecute because of the simultaneous litigation of the instant action. See PX 10.[13] Several postal officials testified to the Postal Service's former policies and practices concerning the employment of persons with criminal records. Plaintiff's witness, Samuel Henderson, was the Employment Officer at the GPO from 1970 through 1973. During this period his employment assistants were Jack Eichenholtz, Ralph Romano and Rudolf Covino.[14] Henderson testified that after an applicant took an examination, he would be ranked on a list according to his score. When additional employees were needed, applicants would be called in for pre-employment interviews as their names were reached on the list. At the interview, the applicant would complete an application which is reviewed by a personnel clerk. If the clerk found any material derogatory information in the application, such as a criminal conviction, he would notify one of his supervisors, the employment assistants, who, in 1972 at the GPO, were Eichenholtz, Romano and Covino. Tr. at 64-65. At that point, the applicant would be interviewed by the employment assistant. Henderson testified that in his opinion the procedures followed in 1972 as set forth in the 1971 Handbook, see PX 11, were substantially similar to the procedures followed in 1976 as set forth in the 1975 revision of the Handbook. See PX 12; Tr. at 68-69. He further testified that he followed these regulations and that he could not recall ever recommending a convicted felon for appointment. He could not say with assurance whether Eichenholtz or others in the appointment unit had made such recommendations. Tr. at 69-70, 73. Eichenholtz, who is presently the Supervisor of Employment and Placement at the GPO, testified for defendants that under the regulations in effect in 1972, like those now in effect, the applicant's total background was considered in determining his suitability. Tr. at 93. Among the factors normally considered were the applicant's previous employment history[15] and military 1294 service, and his criminal conviction record, if any. Tr. at 93. Eichenholtz further testified that when an application indicated that the applicant had previously been employed by the Postal Service, the appointment unit would send for his Postal Service employment record and review it before any decision on his application would be made. Tr. at 98-99. Although he does not recall reviewing plaintiff's application in 1972, he did review plaintiff's employment record during the course of the EEO investigation and found that even if plaintiff had never been convicted of a felony, he would not have been found suitable for employment because of his prior poor Postal Service employment record. See Tr. at 95-97; DX B at 55-56. In addition, Eichenholtz testified that he has on occasion approved the appointment of convicted felons. Tr. at 97. Covino, who interviewed plaintiff on March 16, 1972, see DX B at 16, testified that he normally processed between 150 and 200 employment applications daily and that he had no recollection of processing plaintiff's application in 1972. Covino further testified that his disapproval of plaintiff's application meant that plaintiff did not meet the suitability requirements contained in the Handbook. In addition, Covino testified that according to his understanding of the regulations concerning criminal convictions in effect in 1972, a felony conviction did not automatically bar an individual from employment since other factors, such as the amount of time between the conviction and the application for employment, the applicant's intervening work record and his prior experience with the Postal Service, were also considered. See Tr. at 102. Covino later testified, however, that the Postal Service had a policy against hiring anyone who had been convicted of a felony. Tr. at 106. Like Eichenholtz, Covino also reviewed plaintiff's Postal Service employment record during the EEO investigation in 1976 and submitted an affidavit outlining plaintiff's poor prior employment record with the Postal Service. See Tr. at 103-04; DX B at 57-58. Although Covino had no recollection of reviewing plaintiff's application in 1972, he testified that that affidavit reflects his impression of plaintiff's application following the normal procedure of reviewing the applicant's prior Postal Service employment record and other available information in addition to his conviction record. Tr. at 105. Finally, plaintiff submitted statistical evidence of the proportion of minorities in the general population and the proportion of minority arrests and convictions in the general population for a number of different time periods and geographic areas. See PX 14, 15.[16] The Court has gleaned the following data from plaintiff's submissions: 1. United StatesGeneral Population (in thousands): 1960 (April 1) 1970 (April 1) White Black Other White Black Other United States 158,832 18,872 1,620 178,158 22,589 2,558 New York State 15,287 1,418 78 15,891 2,170 181 1295 1975 (July 1) Percent Black of Total White Black Other 1960 1970 1975 United States 185,141 24,435 3,456 10.5 11.1 11.5 New York State 15,434 2,382 260 8.4 11.9 13.2 See PX 14, Statistical Abstract of the United States, 1978, Table No. 35, Resident Population, By Race States: 1960 to 1975 (footnote omitted). 2. New York CityGeneral Population (in thousands): 1960 1970 Total Percent Black Total Percent Black 7,782 14.0 7,895 21.1 Other Minorities 178 See id., Table No. 24, Cities with 100,000 Inhabitants or More in 1970 Population, 1950 to 1976 [estimates], and Area, 1970. 3. Persons Arrested in the United States: Item Unit 1970 1972 1973 1974 Agencies reporting Number 5,208 6,114 5,914 5,222 Population represented Mil 142 151 145 124 Persons arrested 1,000 6,257 6,707 6,248 5,853 White 1,000 4,373 4,664 4,459 4,112 Percent of Total Percent 69.9 69.5 71.4 70.3 Black 1,000 1,688 1,484 1,636 1,562 Other 1,000 196 195 153 179 1975 1976 1977 1978 Agencies reporting Number 7,993 10,058 10,864 11,852 Population represented Mil 169 173 197 207 Persons arrested 1,000 7,671 7,384 8,972 9,688 White 1,000 5,539 5,337 6,429 6,793 Percent of Total Percent 72.2 72.3 71.7 70.1 Black 1,000 1,935 1,870 2,308 2,562 Other 1,000 197 177 235 333 See PX 14, Statistical Abstract of the United States, 1980 Table No. 320, Persons Arrested Race, Sex and Age: 1970 to 1979 (footnote omitted). This table includes persons arrested for both felonies and misdemeanors. 1296 4. Percentage of Felony Arrests, By Race in New York City for 1971: Whites Blacks Hispanics 24 53 23 See PX 14, A Criminal Justice System Under Stress, Vera Institute of Justice, August 15, 1975, Table 5-3 at 53.[17] 5. Percentage of Felony Convictions, By Race for 1978: New York State New York City White 45.8 39.7 Black 48.0 52.8 Other 6.2 7.5 See PX 14, New York State Criminal Justice Processing, Felony Offenders Disposed in 1978, An OBTS Report, March 1, 1981, Table 3 and Figure 9. 6. Percentage of Incarcerated Population, By Race: State Prisons in United New York States New York State City 1974 1970 1971 1978[] White 51 33 31 15.2 Black 47 53.5 55 57.7 Other 2 13.5 13 25.5 1 (not available for study) See PX 14, Characteristics of Inmates Under Custody, 1970, The New York State Department of Correctional Services, Division of Program Planning and Evaluation, Table 11b at 5; State of New York Department of Correctional Services Division of Research Selected Statistical Table for the Year 1971 and the Movement of Population for the Year 1972, New York State Department of Correctional Services Division of Program Planning and Evaluation, Table 6; Report to William Ciuros, Jr., Commissioner of New York City Department of Correction, In Response to the National Council on Crime and Delinquency Report on "The Cost of Incarceration in New York City," As Presented to the Public Safety Committee of the City Council of New York, March 7, 1978.[18] Plaintiff failed to submit any 1297 statistical evidence on the racial composition of (1) applicants to the Postal Service, (2) employees of the Postal Service, or (3) applicants who have been rejected by the Postal Service because of prior criminal convictions. DISCUSSION Title VII Claims Section 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, requires that "[a]ll personnel actions affecting employees ... in the United States Postal Service ... shall be made free from any discrimination based on race, color, religion, sex or national origin." The standards applicable to section 717 claims are found in 42 U.S.C. § 2000e-2(a), which provides in pertinent part: It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin .... Section 717, which extended the remedies of Title VII to federal employees, became effective March 24, 1972.[19] Defendants argue that plaintiff is barred from litigating claims arising from his 1970 denial of reinstatement and March 20, 1972 denial of employment because section 717 cannot be applied retroactively to those claims.[20] It is now well-settled that section 717 applies retroactively to actions in which an administrative or judicial claim was pending on March 24, 1972 but not if such 1298 claims had been finally decided or abandoned by that date. See Revis v. Laird, 627 F.2d 982 (9th Cir. 1980); Brown v. General Services Administration, 507 F.2d 1300, 1304-06 (2d Cir. 1974), aff'd, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976); Henderson v. Defense Contract Administration Services Region, New York, 370 F. Supp. 180 (S.D.N.Y.1973).[21] Defendants argue that since plaintiff did not file his administrative complaint challenging the 1970 and 1972 employment decisions until January 31, 1976, section 717 cannot be applied retroactively. Plaintiff responds that section 717 should nonetheless be applied retroactively to actions challenging pre-March 24, 1972 discrimination when no administrative claim was yet pending on that date, relying upon Huntley v. Department of Health, Education and Welfare, 550 F.2d 290 (5th Cir. 1977), and Laurel v. United States, 547 F.2d 917 (5th Cir. 1977). See also Carreathers v. Alexander, 587 F.2d 1046, 1050-51 (10th Cir. 1978). Judge Tuttle stated in Huntley: We perceive no distinction between those cases in which the illegal conduct had occurred prior to the enactment of the 1972 amendment where there was already pending a claim based upon such conduct and a case like the one we are concerned with, where the claim had not yet been filed. 550 F.2d 295-96. In Brown v. Turner, 490 F. Supp. 939 (D.D.C.1980), however, where plaintiff alleged that the act of discrimination occurred on April 5, 1971 but did not file his informal complaint of discrimination until February 23, 1976, the court declined to follow the reasoning of Huntley, absent allegations of a continuing violation. In the present case, plaintiff's administrative claims both allege a continuing discriminatory practice. Therefore, plaintiff argues that the continuing nature of the violation permits the Court to consider both pre- and post-amendment acts of discrimination regardless of the pendency of an administrative claim on March 24, 1972. See Bethel v. Jeffers, 589 F.2d 631, 636-37 (D.C.Cir.1978); Ettinger v. Johnson, 518 F.2d 648, 651 n.7a (3d Cir. 1975); Fleischhaker v. Adams, 481 F. Supp. 285, 287 (D.D.C.1979); Chewning v. Schlesinger, 471 F. Supp. 767, 772-75 (D.D. C.1979). It is clear that a continuing violation permits the consideration of acts of discrimination that occurred prior to the relevant limitations periods when plaintiff alleges at least one "fresh" act of discrimination one which occurred within the relevant limitations period that is part of the continuing discriminatory pattern or policy. See Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 274-75 (2d Cir. 1981); Marin v. New York State Department of Labor & Manpower Services Division, 26 E.P.D. ¶ 31,850, 512 F. Supp. 353 (S.D.N.Y. Apr. 24, 1981). Although, to the Court's knowledge, section 717 has never been applied retroactively in this Circuit to claims when no administrative or judicial action was pending on March 24, 1972 based upon allegations of a continuing violation, the Court would be inclined to do so given the remedial nature of section 717. See Brown v. General Services Administration, supra. Upon consideration of the merits of plaintiff's claims, however, the Court concludes that plaintiff has failed to prove a discreet violation of Title VII much less the continuing violation he has alleged.[22] 1299 Plaintiff alleges that the Postal Service's former policy governing the employment of persons with criminal records as contained in the Handbook automatically and invariably caused the exclusion of persons convicted of a felony or a serious or unusual number of misdemeanors without consideration of their qualifications or the job-related nature of the conviction. He further alleges that this policy was the sole cause of defendants' decision not to employ him in 1970, 1972 and 1976. Plaintiff attacks defendants' policies as discriminatory in both treatment and impact in violation of Title VII. As the Supreme Court stated in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S. Ct. 1843, 1854-1855 n.15, 52 L. Ed. 2d 396 (1977) ["Teamsters"], discriminatory or disparate treatment occurs when "[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Disparate impact, on the other hand, results from the use of "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. 431 U.S. at 336 n.15, 97 S.Ct. at 1855 n.15. Proof of motive is not required to sustain a claim of disparate impact. The Court will first address plaintiff's discriminatory treatment claim. Discriminatory Treatment A prima facie case of discriminatory treatment is established by plaintiff's showing: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek 1300 applications from persons of complainant's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973) (footnote omitted). The burden then shifts to defendants to produce evidence that plaintiff was rejected for a legitimate, nondiscriminatory reason. However, "[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (U.S. 1981). If defendants carry their burden of production, the presumption of discrimination raised by the prima facie case is rebutted and plaintiff is given the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. Id. Throughout plaintiff has the ultimate burden of persuasion that he was the victim of intentional discrimination. Even if the Court assumes that plaintiff was qualified for the positions he applied for because he passed the necessary competitive examinations, which the Court believes is doubtful in view of his poor prior Postal Service record, defendant has successfully rebutted the presumption of discrimination through the production of evidence that plaintiff's poor service record was the actual reason for his rejection. Plaintiff has not demonstrated that this proffered reason is a mere pretext for the alleged discriminatory actions. Although in his post-trial memorandum of law plaintiff argues that he was a victim of discriminatory treatment, at trial he testified that his claim rested solely upon the alleged disparate impact of defendants' policy regarding the employment of persons with criminal convictions upon minority applicants. Tr. at 61-62. There is no indication in the record that the challenged policy was adopted with a discriminatory motive and the Court finds that it was not. Moreover, the Court finds that at no time did any Postal Service employee act with a discriminatory motive in reviewing and denying plaintiff's applications. Therefore, the Court concludes that plaintiff has not sustained his burden of proof that he was the victim of discriminatory treatment in the defendants' denial of employment in 1970, 1972 and 1976. Disparate Impact A prima facie case of disparate impact may be established by showing that an employer's facially neutral practice has a disparate impact upon members of plaintiff's racial group. Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S. Ct. 849, 852, 28 L. Ed. 2d 158 (1970). Such a discriminatory impact is frequently evidenced by statistics from which it may be inferred that an employer's selection methods or employment criteria result in employment of a larger share of one group [(non-minorities)] than of another [(minorities)]. Intl. Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 339 [97 S. Ct. 1843, 1854 n.15, 52 L. Ed. 2d 396] (1977); Hazelwood School Dist. v. United States, 433 U.S. 299 [97 S. Ct. 2736, 53 L. Ed. 2d 768] (1977). The employer may defend by showing that the employment practice is justified by business necessity or need and is related to successful performance of the job for which the practice is used, Griggs v. Duke Power Co., supra, 401 U.S. at 424, 432 [91 S. Ct. 849, 852]. In that event the plaintiff must be given an opportunity to show that other selection methods having less discriminatory effects would serve the employer's legitimate interest in competent performance of the job. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 [95 S. Ct. 2362, 2375, 45 L. Ed. 2d 280] (1975); Dothard v. Rawlinson, 433 U.S. 321, 329 [97 S. Ct. 2720, 2726, 53 L. Ed. 2d 786] (1977); United States v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971). Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir. 1980). In the present case, defendants contend that plaintiff has failed to establish a prima facie case by a fair preponderance of the credible evidence for three reasons. First, defendants argue that unlike cases relied upon by plaintiff, see, e. g., Green v. Missouri 1301 Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975); Gregory v. Litton Systems, Inc., 316 F. Supp. 401 (C.D.Cal.1970), aff'd, 472 F.2d 631 (9th Cir. 1972), defendants never maintained a blanket policy that disqualified persons with criminal convictions from employment. Rather, they claim that the policy contained in the Handbook and its revisions from 1971 through 1979 called for the review of all available information concerning the applicant to assess his qualifications, including his prior employment records, military service records, and convictions, if any. When a felony or series of misdemeanor convictions appeared on an application, the Handbook provided that the applicant "should normally be removed from the register," although the installation head could submit the application file to the Regional Director of Employee Relations with reasons for recommending the appointment. From the evidence adduced at trial, it is unclear how many applicants with a felony or a number of misdemeanor convictions were recommended for appointment since plaintiff submitted no statistical evidence on this point. It is clear that arrests, rather than convictions, were not considered. The June 22, 1977 letter from the Acting Manager of the EEO Branch of the Northeastern Region in regard to plaintiff's 1970 and 1972 claims of discrimination states that six motor vehicle service employees, four black and two white, were removed because of penal sentences and their applications for reinstatement denied after individual consideration was given to their requests. These figures, however, do not appear to be statistically significant in terms of overall experience under the policy. See PX 4. Covino and Chiarella, however, were under the impression that the Postal Service policy generally prohibited the employment of convicted felons although it also appears that both of these individuals were lower level personnel clerks who would not make the final decision on such matters under the review procedure described by Henderson. But Henderson, who was such a decisionmaking official, has no recollection of ever recommending a convicted felon for appointment. Balanced against this evidence, Eichenholtz testified that although an applicant's conviction was always a factor considered in determining his suitability under Postal Service procedures, that factor was not considered in isolation but in the context of the applicant's overall qualifications and employment record. Moreover, he testified that he had recommended convicted felons for appointment. This testimony, together with the fact that plaintiff himself was hired at the Hicksville Post Office in 1976, severely undercuts his claim that the Postal Service maintained an unwaivering policy that disqualified persons convicted of a felony or a serious or unusual number of misdemeanors.[23] Based upon the present records, the Court concludes that persons with such conviction records were more often rejected than not. Plaintiff, however, has not proved by a fair preponderance of the credible evidence that defendants' former policy automatically disqualified persons convicted of felonies or serious misdemeanors. See Cross v. United States Postal Service, 483 F. Supp. 1050 (E.D.Mo.1979). Second, defendants argue that even if plaintiff had established that defendants' policy always disqualified persons with criminal records, his statistical evidence is totally insufficient to establish a prima facie disparate impact case. In particular, defendants rely upon Hazelwood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977), and New York Transit Authority v. Beazer, 440 U.S. 568, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979), in pointing to plaintiff's failure to adduce comparative statistics concerning actual applicants 1302 for Postal Service positions who were denied employment because of criminal convictions. The Court agrees that plaintiff's statistical evidence leaves much to be desired. Plaintiff has not defined the relevant geographic area from which applicants could be expected to be drawn. There are references throughout the record to the "Northeast Region" of the Postal Service. The Court assumes that such a regional area is the relevant area, but there is no indication as to the localities that are included in the Northeast Region. Moreover, a portion of the general population statistics relied upon by plaintiff focuses on arrests, some of which include both felony and misdemeanor charges, rather than on felony or serious misdemeanor convictions. The record indicates, however, that arrests were not considered at all by the Postal Service. Finally, although the Court indicated at trial that it was primarily interested in statistical evidence for the year 1976, plaintiff was given an opportunity to submit statistical evidence for other years. Having carefully examined all of plaintiff's statistical evidence in connection with his claim of a continuing violation and as relevant background evidence for his 1976 claim, the Court finds that there are a number of gaps both in terms of geographic area and time periods for percentages of minority convictions for felonies and serious misdemeanors.[24] The Supreme Court has noted that "statistics ... come in infinite variety .... [T]heir usefulness depends on all of the surrounding facts and circumstances." Teamsters, supra, 431 U.S. at 340, 97 S.Ct. at 1856-57. The Court further recognizes that "[t]here is no requirement ... that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants." Dothard v. Rawlinson, supra, 433 U.S. at 330, 97 S.Ct. at 2727. Moreover, plaintiff is "not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement's grossly discriminatory impact." Id. at 331, 97 S.Ct. at 2727. When special qualifications are required for particular jobs, however, comparisons of the general population, rather than the group of qualified individuals, possesses less probative value. Hazelwood School District v. United States, supra, 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13. The difficulty with plaintiff's statistical evidence in establishing a prima facie case that defendant's policy concerning the employment of persons with criminal records has a disproportionate impact on minorities, is that it assumes that all convicted felons apply to the Postal Service, pass the necessary competitive examination and then are rejected because of their criminal record. But there is no evidence in the record that discloses the proportion of convicted persons, either black or white, who could successfully complete the Postal Service examination. Under Postal Service procedures, an applicant's conviction record would only be considered after he or she passed the examination and received a pre-employment interview. Despite plaintiff's argument that the positions he applied for did not require special qualifications, passing the competitive examination was a threshold requirement. Therefore, just as general population statistics are less probative where a position requires special qualifications, they are also less probative where an applicant must successfully complete a competitive 1303 examination before the challenged policy is applied to him.[25] The probative value of plaintiff's statistical evidence is further undercut by the Court's finding that defendant's policy was not consistently applied to disqualify applicants with conviction records. Thus, even if the Court overlooks the obvious geographical and time gaps in the general population statistics and assumes that plaintiff's statistical evidence supports the general proposition that minorities are convicted of felonies and serious misdemeanors at a higher rate than their proportion of the general population during the time periods of the alleged violations, the Court finds that the statistical evidence is not sufficient to establish a prima facie case that defendants' policy had a disparate impact upon minorities. Moreover, even if plaintiff had established such a prima facie case, defendants have submitted substantial evidence that, regardless of his prior conviction, plaintiff would not have been hired because of his prior poor employment record with the Postal Service. Although such questions of causation usually arise in the context of disparate treatment claims where the employer's discriminatory motive is critical, the Court believes that it is plaintiff's burden to prove by a fair preponderance of the credible evidence that the employment practice or policy that is challenged as having a disparate impact on a protected class was a determinative factor in the employment decision affecting plaintiff. See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 n.10, 96 S. Ct. 2574, 2580 n.10, 49 L. Ed. 2d 493 (1976); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979). In the context of an age discrimination action, the Second Circuit Court of Appeals has recently stated that: Where an employer acts out of mixed motives in discharging or refusing to hire an employee, the plaintiff must show that [the impermissible consideration] was a causative or determinative factor, one that made a difference in deciding where the plaintiff should be employed. Geller v. Markham, supra, 635 F.2d at 1035; see Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 11-12 (2d Cir. 1981); Smithers v. Bailar, 629 F.2d 892, 897-98 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979); Laugeson v. Anaconda Co., 510 F.2d 307, 317 (6th Cir. 1975). Thus, while plaintiff need not prove that his conviction was the sole consideration in defendants' decisions not to hire him, he must prove that his fortunes would have been different but for that factor. Geller v. Markham, supra, 635 F.2d at 1035. The evidence adduced at trial clearly indicates that plaintiff's conviction was a factor that was considered on each of the three occasions plaintiff applied for a position with the Postal Service. The Court finds, however, that plaintiff's conviction was not a determinative factor in each of those decisions. The regulations contained in the Handbook provided that a prior unsatisfactory work history was as much a ground for disqualification as a criminal conviction. Moreover, the testimony at trial revealed that an applicant's prior Postal Service work history was routinely considered before any decisions were made concerning his application. Thus, it was plaintiff's prior Postal Service record, and not his conviction, that was the ground communicated to him for the 1970 denial of his request for reinstatement. 1304 Moreover, the Court does not find determinative of the causation issue with regard to the 1972 and 1976 denials of employment the 1972 GPO index card file of applicants with derogatory information, which lists plaintiff's conviction, or the fact that in 1976 Chiarella told plaintiff that the Postal Service's policy prohibited hiring an individual with a criminal record. The record indicates that on both occasions the Postal Service followed the application procedures contained in the Handbook and described in Henderson's testimony. See PX 7 at 2. Therefore, an employment assistant or supervisor, rather than a clerk like Chiarella, made the final decision on plaintiff's applications. Although not direct evidence of the mental processes of the employment assistants at the time of the decisions, the Court credits Eichennholtz's testimony that under normal procedures plaintiff's prior service record would be assessed. This record was so poor that he would not have been appointed regardless of his conviction. Accordingly, the Court finds that plaintiff's conviction was not a determinative factor in any of the decisions denying him employment. Due Process Claim Plaintiff contends that defendants' policy regarding the employment of persons with criminal records automatically disqualified those applicants on the assumption that a conviction renders an applicant unfit for employment in the Postal Service. He argues that such a policy is not rationally related to a legitimate governmental interest. See Smith v. Fussenich, 440 F. Supp. 1077 (D.Conn.1977) (three-judge panel). Defendants, on the other hand, argue that plaintiff's due process claim is barred because Title VII is the exclusive remedy for federal employees complaining of employment discrimination. Brown v. General Services Administration, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). Although the Court does not agree with defendants that plaintiff's due process challenge to the rationality of defendant's policy is precluded by the rationale of Brown v. General Services Administration, supra, the Court finds that plaintiff has not proven that defendants' policy for the employment of persons with criminal records, either as contained in the Handbook or as applied, automatically disqualified such applicants without consideration of the conviction's effect on their fitness for employment with the Postal Service. See pp. 1300-1301 supra. Accordingly, plaintiff has not sustained his burden of proof that defendants' policy was overbroad and thus not rationally related to a legitimate governmental purpose. CONCLUSION In accordance with the foregoing, after a trial on the merits of plaintiff's amended complaint, the Court finds for the defendants. The Clerk of the Court is directed to prepare and enter Judgment dismissing the amended complaint. These are the Court's findings of fact and conclusions of law. Fed.R.Civ.P. 52(a). SO ORDERED. NOTES [18] Approximate percentages and includes pre-trial detainee population. [19] This action was originally assigned to Judge Pierce and transferred to this Court for trial on the amended complaint. [20] See Plaintiff's Exhibit 12 [hereinafter Plaintiff's Exhibits will be referred to as "PX ___" and Defendants' Exhibits will be referred to as "DX ___"]. This revision became effective December 31, 1975. The prior version of the Handbook, which became effective October 1, 1971, was substantially similar with respect to the treatment of criminal records and provided in pertinent part: 312.2 Where the eligible has been convicted of a serious crime, such as a felony involving an act of violence, armed robbery, assault with a dangerous weapon, arson, etc., or a series of minor crimes (misdemeanors), additional inquiry should be made: a. Include checks with parole officers, social service workers or agencies, and the warden or other head of any penal institution in which the individual has been confined. The case should be reviewed to determine that the eligible meets the suitability standards of the Postal Service. .... 313 Appointment Approval After reviewing all available information concerning the eligible the following actions will be taken: a. If the derogatory information concerns only one minor incident (misdemeanor), or if it was determined that the derogatory information was not identified with the eligible, the postal installation head may make the appointment. The installation head should keep in mind that only suitable persons should be employed. b. If the derogatory information shows that the individual has been convicted of a felony in recent years, or at any time of an act of violence or notorious or immoral conduct or is currently debarred by the CSC, the postal installation head should refer the case to the appropriate regional authority for decision as to the eligible's employability. If for any reason the installation head believes that special consideration should be given to such an appointment, the entire file should be submitted by him to the appropriate regional authority with reasons for recommending appointment. This would also apply to convictions for an unusual number of misdemeanors, usually three or more, or of two or more misdemeanors if they involve the same offense and were within recent years. (Postal Service suitability standards are not limited to the 2-year period on felonies and 1 year on misdemeanors and discharges generally used by the Civil Service Commission.) If the regional authority concurs with the recommendation of the installation head, he will authorize the appointment. (This decision is final.) .... 314.4 Former Convicts or Parolees In all cases in which derogatory information shows imprisonment and/or parole, the warden, or officer in charge of the institution(s) involved should be queried regarding the eligible's conduct, cooperation, progress toward rehabilitation, etc. Similarly, parole officers should be queried regarding cooperation, attitude, problems, if any, progress toward rehabilitation, and employability. 314.5 Partial List of Reasons Which May Disqualify Eligibles In making selections for any type of accession, determination must be made whether an eligible or applicant might be disqualified for reasons such as the following. Such cases will be forwarded to the appropriate regional authority for advice and/or decision as to employability: a. Dismissal from employment for delinquency or misconduct; b. Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct; c. Intentional false statements or deception or fraud in examination or appointment; d. Refusal to furnish testimony as required by the Civil Service Commission, the Postal Service, or the appointing officer, arising under laws, rules, and regulations; e. Habitual use of intoxicating beverages to excess; drug addiction or sexual perversion; f. Reasonable doubt as to the loyalty of the person involved to the Government of the United States; g. Conviction of theft or embezzlement; h. Conviction of crimes of violence, including assault with a deadly weapon; or i. Any legal or other disqualification which makes the applicant unfit for the Postal Service. See PX 11. [21] The new standards, which are not challenged in this case, are contained in section 313.3 of the revised version of the Handbook: 313.3 Hiring Policy on Applicants with Criminal Records .31 Applicability. This statement of policy is issued for the guidance of hiring authorities investigating, reviewing, and rating employment applications for postal positions from persons with histories of criminal arrest or conviction. These standards do not apply to those positions designated as sensitive by the Postal Service. .32 Background and Purpose. The Postal Service recognizes that many persons with criminal records are capable of faithfully executing the duties associated with postal employment, and that they are entitled to compete for jobs on their individual merits. It is the obligation of hiring authorities to assess job applicants' criminal records fairly. The intent of this is to enable appointing officials to fulfill this obligation in a manner consistent with the Postal Service's primary duties to maintain the security of the mail and to assure public trust in the integrity and reliability of postal employees. .33 Use of Arrest Records .331 No inquiries may be made, either orally or in writing, of the applicant or of any other person, concerning arrest records, except where the arrest actually resulted in a criminal conviction, or where the charges are still pending. In addition, when inquiring as to the conviction record of any applicant for employment from any person or agency, including law enforcement agencies, postal officials must state orally, or in writing, that: It is not the policy of the U.S. Postal Service to inquire into the arrest records of applicants for employment, where the charges arising out of an arrest have been dismissed, there has been an acquittal, the proceedings have otherwise not resulted in a conviction, or where the record of such charges does not contain or reflect an actual criminal conviction of such charges. If possible, please exclude all such charges in the requested conviction record, except those still pending. See Appendix D-3 for sample letter of conviction inquiry. .332 Arrests for criminal charges must be given no consideration in evaluating an application for employment: a. If the charges have been dismissed; b. If there has been an acquittal; c. If the proceedings have otherwise not resulted in a criminal conviction; or d. Where the record of such charges does not contain or reflect an actual criminal conviction on such charges. .333 Hiring authorities must also recognize that young persons arrested on criminal charges may be subject to adjudications in juvenile courts under juvenile offender statutes, and that in many jurisdictions these adjudications are not deemed to be criminal convictions. Such adjudications are not to be considered in evaluating an applicant for employment. .334 Appointing officials are not prohibited from considering or inquiring into criminal charges pending against any applicant at the time the application is considered. If the appointing official receives any records or information where the disposition of a criminal charge is not adequately reflected, or where the charge is still pending, give the applicant an opportunity to explain the surrounding circumstances of the charges and whether the charges have been terminated in the applicant's favor. Pending criminal charges must not result in the automatic rejection of the applicant (see 313.36). .34 Use of Conviction Records .341 In evaluating an applicant's conviction record, appointing officials may consider only the nature of the offense(s) of which the applicant has actually been convicted, and not the nature of the offense(s) with which the applicant may have been charged prior to conviction. .342 In those instances where an applicant's criminal conviction has been set aside, vacated, or annulled, expunged or sealed, pursuant to statute or court order, that conviction may not serve as a basis for the disqualification of the applicant for employment. No inquiry, either oral or written, may be made, either directly or indirectly, into any applicant's conviction where the conviction has been set aside, vacated, or annulled, expunged or sealed. .343 It is USPS policy to evaluate the employability of each applicant with a criminal conviction record individually. The mere fact that an applicant has a criminal conviction record is not sufficient to disqualify that applicant from postal employment. Instead, an applicant should be rejected on the basis of a history of criminal conviction only after a specific finding that that history is directly related to the applicant's present capacity to perform as a Postal Service employee. To the extent available, such factors as the following must be considered during such an evaluation: a. The applicant's age at the time of the offense(s). b. The nature of the offense(s) and the underlying circumstances of the offense(s). c. Length of time elapsed since the applicant's offense(s). d. Evidence of efforts made by the applicant toward rehabilitation, including job training or educational programs the applicant may have participated in while incarcerated. e. Information supplied by penal authorities, parole and probation officers, social service workers or social agencies regarding the applicant's progress toward rehabilitation or employability. f. The applicant's prior employment record, including participation in a job training program. g. Dispensations which may have been granted by state or federal authorities to evidence the applicant's rehabilitation or relieve the applicant of disabilities to which the applicant may have been subject upon conviction (e. g., certificates of relief from disabilities, certificates of good conduct, certificates restoring civil rights). h. The nature and location of the Postal Service position that the applicant seeks. .344 In those instances where an applicant has neither received a criminal conviction during the 10 years immediately preceding the date of the application, nor been incarcerated as a result of a criminal conviction during the 5 years immediately preceding the date of the application, the applicant's conviction record may not serve as the sole basis for disqualification from appointment. .35 Applicants on Probation or Parole. Applicants subject to probation or parole supervisions as a result of criminal conviction may not be rejected for employment solely as a result of such supervision. Such applicants are entitled to individual evaluation for positions under 313.343. .36 Applicants with Pending Criminal Charges. An applicant subject to pending criminal charges is eligible for appointment to employment. However, if conviction on the charges would make the applicant unsuitable under 313.343, a. No action may be taken on the application until the charges are resolved, and b. The applicant's eligibility for appointment is extended for the life of the applicant's eligibility on the register. .37 Verification of Accuracy of Criminal Record Information. In making determinations regarding applicants with criminal records, hiring authorities must take special care to ensure the accuracy of criminal record information they may receive from law enforcement authorities or other agencies. Where discrepancies exist between such information and that reported by the applicant (e. g., convictions not reported by the applicant) the applicant must be sent a letter of inquiry as provided in 315.1. The appropriate content of a statement to accompany a letter of inquiry regarding an applicant's criminal record is contained in Appendix D-2. .38 Career Opportunities. Persons who have criminal records at the time of their appointment to Postal Service employment may not be discharged or denied transfer, assignment, or promotion to any postal positions except those designated sensitive, as a result of such records. This does not preclude the Postal Service from taking appropriate disciplinary action, including removal, against an employee for falsification of any employment application form. 313.4 Sample Suitability Considerations The following three examples show the type of reasoning that should accompany suitability determinations. Supporting documentation must be retained in the Hiring Worksheet file. Example A: Applicant, while an adult, was convicted of armed robbery 11 years ago. The applicant served 4 years in prison, and was released 7 years ago. During the past 7 years, applicant had several different jobs, in different areas of the country. In checking with the applicant's previous employers, the appointing official has learned that the applicant was separated for cause from 2 jobs, and had attendance problems. The conviction may be considered, but may not be used as the sole basis for disqualification (see 313.344). However, the conviction, coupled with the more recent adverse employment record, would support a determination of "unsuitable." Example B: Applicant, when 22 years old and in college, was convicted of malicious mischief as a result of breaking windows. Thereafter, he completed military service with an honorable discharge, following which applicant completed 4 years of college, earning a BA degree while working at night. Applicant is now 28 years old, and has no other convictions. Applicant should be declared "suitable." Example C: Applicant was a 25 year old bank teller, and was arrested for embezzlement 3 years ago. The applicant agreed to make restitution, and resigned the position with the bank. Due to the bank's desire to avoid adverse publicity, the employee was never prosecuted, and the charges were dropped. Following this incident, the applicant developed an unstable work record. The arrest may not be considered, but the adverse employment information obtained from the bank, unrefuted by the applicant, as well as the recent unstable employment, should be considered. Note the applicant's adulthood at the time of the incident, the recency of the incident, and the similarity between the type of offense and the opportunity for such a theft in Postal employment. The postal employee, like a bank teller, has a fiduciary responsibility for the property of others. These facts and considerations would support a determination that the candidate is "unsuitable." See DX D-2. [22] The Court originally found the language of paragraph 5 of the Consent Order susceptible to two interpretations: (1) that Hill preserved his claims challenging the former Postal Service policies and practices, and (2) that Hill agreed to reapply under the new regulations and thereafter file an amended complaint containing his claims for relief. The Court now finds, however, that the parties intended to preserve Hill's claims challenging the former policies and practices. [23] Plaintiff has been employed as a laborer in the New York City Parks Department since June 1977. He was employed by the Parks Department for a period in 1968 and again from 1972 until he was laid-off in 1975 because of the City's financial crisis. See Tr. at 25. [24] The circumstances of the incident resulting in this conviction were not revealed at trial. [25] Samuel Henderson, a former employment officer at the GPO, testified that the appointment unit kept an index card file of applicants who had been denied employment because of some serious derogatory information. The purpose of the file was to alert personnel clerks in the appointment unit of the information even before the clerk received the applicant's official personnel folder. These folders are kept in St. Louis, Missouri and their transmittal from there to the personnel clerk can take anywhere from a few days to four weeks. Thus, the index card file stresses the need to obtain the personnel folder before any action is taken on an application even when temporary employment is being sought. Tr. at 74-76. Hill's index card contained his name, address, date of birth, social security number and stated "NS for MVO ptfs on 03/16/72 Arrested 10/29/68 New York, N.Y. Found guilty of criminally negligent homicide sentenced to maximum of 3 years. Removed NYPO on 03/02/70." See DX B at 20. "NS for MVO ptfs" means "Not suitable for motor vehicle operator. Part-time flexible schedule." Tr. at 109. [9] Rudolf Covino made the following notation on plaintiff's interview call-in notice: "NS-DNR [8 or 2]/10/72 (RC) Arrest Record." See DX B at 15, 88; Tr. at 108. "NS-DNR" means "Not suitable-do not reconsider." This notation was followed by a date which is unclear, Covino's initials, and the reference to plaintiff's arrest record. [10] Samuel Henderson, the GPO employment officer in 1972, testified that during this period a letter of denial did not notify an applicant of his right to appeal although the applicant would receive verbal notification of that right if he telephoned concerning the decision on his application. See Tr. at 77. There is no indication that plaintiff made such a telephone inquiry regarding his 1970 or 1972 applications. Denial letters now inform applicants of their right to appeal. [11] It is uncertain whether plaintiff received a letter denying his application from the Jamaica Post Office since their records could not be located. [12] Plaintiff submitted a letter from his Parole Officer that stated that plaintiff had abided by the conditions of his parole and maintained stable employment during that period. See PX 8. [13] Plaintiff timely commenced the present action on July 7, 1977, which was more than 180 days after he filed his administrative claim of discrimination on December 3, 1976. See 42 U.S.C. § 2000e-16(c). [14] Covino was a personnel clerk who at times performed as an acting supervisor. Eichenholtz supervised Romano and Covino. [15] Section 315.1 of the 1971 Handbook, see PX 11, and section 313.5 of the 1975 revised Handbook, see PX 12, contained substantially similar provisions governing the assessment of an applicant's prior work history. Section 313.5 of the 1975 revised Handbook provides: An eligible may be omitted from consideration for employment because of previous unsatisfactory service. The service must have been sufficiently long to be considered a full and fair trial and the character of the service must have been such that the eligible is unlikely to be able to perform satisfactorily in the new position. Situations which may fall in this category are: termination of appointment in the same or another post office for unsatisfactory service; repeated scheme failure, when ability to learn a scheme will be required; or misconduct on the job. Excessive tardiness or absence, or poor conduct in previous post office employment, although no disciplinary action was being taken at the time of resignation, could justify eliminating an eligible from consideration, if the service was recent and there is no indication that the individual has improved his or her work habits. It is the policy of the Postal Service to refuse employment to persons who were removed from the Postal Service or from other Federal employment for cause or who resigned after being notified that charges proposing removal would be, or had been, issued. Prior approval of the Regional Director of Employee Relations must be obtained before employing any such former postal or federal employee. [16] Defendants have stipulated to the authenticity of the statistical evidence contained in PX 14 but dispute the relevancy of statistical evidence for years other than 1976 as well as statistics dealing with arrests rather than felony or serious misdemeanor convictions. [17] Although not reflected in PX 14, the parties have stipulated the data from the Vera Institute study concerns felony arrests by race in New York City for the year 1971. [*] In addition, plaintiff submitted a statistical summary supported by the affidavit of his counsel. See PX 16 and 17, marked for identification. The summary contains charts based on the various statistics contained in PX 14 and information given to plaintiff's counsel in two telephone conversations. In the first conversation, plaintiff's counsel received general population figures by race for the United States, New York State and New York City for 1970 and 1980 from an unidentified person at the office of the United States Census Bureau Data User Services, 26 Federal Plaza, New York, New York. In the second conversation, plaintiff's counsel received the racial breakdown of inmates under the custody of the New York State Department of Correctional Services at the close of each calendar year from 1972 to 1980 from Hank Donnelly, Director of the Division of Records and Statistical Analysis, New York State Department of Correctional Services, State Office Building Campus, Albany, New York. Thereafter, Mr. Donnelly, by letter dated May 4, 1981, forwarded plaintiff's counsel an uncertified copy of a table derived from the above statistics which was offered for admission into evidence. The Court declines to receive into evidence the summary, the affidavit, or Donnelly's statistical table. To the extent that plaintiff seeks to rely upon telephone conversations, such information is plainly inadmissible hearsay. In addition, although the statistical table forwarded to plaintiff by Donnelly may fall within the public records and reports exception to the hearsay rule, see Fed.R.Evid. 803(8), that document in its present form is not authenticated under either Fed.R.Evid. 901 or 902 and thus is inadmissible. The only other information contained in the summary is based on statistics contained in PX 14 and therefore is repetitious. [] Although discrimination in federal employment was prohibited pursuant to executive orders prior to the extension of Title VII remedies to federal employees, the ability of such employees to obtain relief in administrative or judicial proceedings was far from certain. See Brown v. General Servs. Administration, 507 F.2d 1300, 1304 (2d Cir. 1974), aff'd, 425 U.S. 820, 825-28, 96 S. Ct. 1961, 1964-65, 48 L. Ed. 2d 402 (1976). [] Alternatively, defendants contend that these claims are barred because plaintiff did not file a timely administrative complaint as required by the Civil Service regulations then in effect. In 1970, federal employees were required to file administrative claims within 15 days of the alleged discrimination. 5 C.F.R. § 713.214(a)(i), (ii) (1970). This requirement was changed from 15 to 30 days as part of an overall revision of 5 C.F.R. Part 713 promulgated on October 21, 1972. See Ettinger v. Johnson, 556 F.2d 692, 693 n.3 (3d Cir. 1977). Plaintiff relies on portions of those regulations that provide that an extension of such limits will be granted when a complainant shows that he was not notified of the time limits or was not otherwise aware of them. 5 C.F.R. § 713.214(a)(2) (1970). These substantive provisions are now codified at 29 C.F.R. § 1613.214(a)(4) (1980). Plaintiff contends that since the Postal Service processed his claim in 1976 without raising the timeliness issue, the Court should consider his administrative claim to be timely. The evidence adduced at trial indicates that during the relevant time period applicants were not notified of their right to file an administrative complaint or the time limits in which to do so unless they telephoned the personnel office to question the denial of employment. See note 10 supra. Plaintiff testified that he did not know of the time limits and defendants produced no evidence that he knew or should have known of the requirements of the Civil Service regulations. Therefore, although not convinced that the Postal Service waived the regulation's requirements by considering plaintiff's administrative complaint, see Scott v. Claytor, 469 F. Supp. 22, 24-25 (D.D.C.1978); DeMedina v. Reinhardt, 444 F. Supp. 573, 576-79 (D.D.C. 1978), the Court concludes that plaintiff is entitled to an extension of the time limits and that his 1970 and 1972 claims are not barred by these regulations because he had no knowledge of this time limit requirement. See Ettinger v. Johnson, supra, 556 F.2d at 698; Myles v. Schlesinger, 436 F. Supp. 8, 16-18 (E.D.Pa. 1977). [] In Brown, the Second Circuit concluded that section 717 did not create new substantive rights, but rather provided a new remedy for enforcing existing rights. 507 F.2d at 1305. The Court relied upon the common law principle that such remedial statutes are generally applicable to pending cases when it approved the retroactive application of section 717 to pending claims. That common law principle does not support retroactivity in the instant case, however. [] Plaintiff's claim of a continuing violation is based upon allegations that from at least 1970 until the entry of the Consent Order in this case, defendants maintained a policy or practice of automatically excluding from employment persons who had been convicted of felonies or a serious or unusual number of misdemeanors without consideration of the conviction's effect on the individual's fitness to serve as a Postal Service employee. Plaintiff contends that he was denied employment on three occasions because of this policy which allegedly throughout this period had a disproportionate impact upon minorities. The Second Circuit has recently discussed the concept of a continuing violation: As a general matter, the mere continuation of a discriminatory act's effects, when the act itself occurred prior to the pertinent limitations period, is not sufficient to support recovery under Title VII. United Air Lines, Inc. v. Evans, supra, 431 U.S. [553] at 558, 97 S.Ct. [1885] at 1889 [52 L. Ed. 2d 571]. See also Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980). The act that constitutes the violation must be "still fresh" within the statutory period.... Where, however, the defendant has engaged in a continuous policy of discrimination, acts in furtherance of that policy are not viewed in isolation. In such circumstances if the charge has been filed no later than 300 days after the last act by the defendant pursuant to its policy, the plaintiff may recover for earlier acts of discrimination as well. In Acha v. Beame [570 F.2d 57 (2d Cir. 1978)], we stated this principle as follows: To succeed at trial, the appellants must be able to demonstrate a Title VII violation occurring after the effective date of the Act and within the period of the statute of limitations, or 300 day charge-filing period. But such a violation is not limited to hiring violations per se. A continuously maintained illegal employment policy may be the subject of a valid complaint until a specified number of days after the last occurrence of an instance of that policy.... Furthermore, where an illegal policy is so maintained, relief for injuries sustained even before the beginning of the limitations period is appropriate. 570 F.2d at 65 (emphasis in original; citations omitted). Association Against Discrimination in Employment, Inc. v. City of Bridgeport, supra, 647 F.2d at 274 (citations omitted). Of course, in the context of a section 717 claim such as the present one, the statute of limitations is shorter, see note 20 supra, and there is no dispute that plaintiff filed a timely administrative claim challenging the denial of employment at the Jamaica Post Office, the "last occurrence" of which he complains. Therefore, since plaintiff alleges a continuously maintained discriminatory policy and a timely act of discrimination that was a result of that policy, he has succeeded in alleging a continuing violation. See Scott v. Claytor, supra, 469 F.Supp. at 25; Myles v. Schlesinger, supra, 436 F.Supp. at 14-15. But see DeMedina v. Reinhardt, supra, 444 F.Supp. at 576-77. As noted above, however, plaintiff did not sustain his burden of proof with respect to the above allegations. [] Therefore, the present case is distinguishable from Dothard v. Rawlinson, 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977), and Green v. Missouri Pac. R. R. Co., supra. In those actions, the courts found insignificant the occasional waiver of the challenged employment practices since they found that such waivers were aberrations that did not defeat plaintiffs' disparate impact claims. Moreover, the refusals to hire were admittedly caused by the challenged policies in those cases. [] The only felony conviction statistics presented by plaintiff are for 1978 two years after the last discriminatory act he alleges. Although the Court has considered this evidence, it finds evidence concerning post-1976 events to be of much less probative value than statistics for the period of the alleged continuing violation. Moreover, the Court notes that even the statistics contained in plaintiff's statistical summary, PX 16 for identification, which the Court ruled was inadmissible, see note 18 supra, would be of little help in bolstering the overall weakness of plaintiff's conviction statistics for the relevant geographic area during the period in question. [] The Court also notes that in the cases upon which plaintiff relies in defending the sufficiency of his general population statistics, the courts, in addition to such general population statistics, considered statistics of the racial composition of the employer's work force, see Dothard v. Rawlinson, supra, 433 U.S. at 327, 97 S.Ct. at 2725-24, or other statistical evidence that supported an inference that the challenged practice or policy resulted in a disproportionate impact upon the protected class. See Green v. Missouri Pac. R.R. Co., supra, 523 F.2d at 1294. Although the Court realizes that a racially balanced work force cannot immunize an employer from liability where its specific policies or practices violate Title VII, see Teal v. State of Connecticut, 645 F.2d 133, 139 (2d Cir. 1981), evidence that the employer's work force is racially imbalanced is nonetheless probative, especially when plaintiff's general population statistical evidence is weak. [18] Approximate percentages and includes pre-trial detainee population.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519632/	158 N.J. Super. 128 (1978) 385 A.2d 898 RICHARD ACKERMAN ET AL., PLAINTIFFS-RESPONDENTS, v. KRAMER CHEMICAL COMPANY, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued March 7, 1978. Decided April 12, 1978. 129 Before Judges LYNCH, KOLE and PETRELLA. Mr. Anthony R. Amabile argued the cause for appellant (Messrs. Witham & Amabile, attorneys). Mr. Barry F. Zotkow argued the cause for respondent Sylvia Ackerman. PER CURIAM. This appeal is only from that portion of the judgment which awarded $25,000 to Sylvia Ackerman, the wife of plaintiff, Richard Ackerman, on her per quod claim due to personal injuries suffered by her husband in an automobile accident on October 10, 1973 when he was approximately age 36. The $75,000 verdict in favor of her husband has been paid and no appeal has been taken therefrom. The Ackermans had married in 1957, and had separated around February of 1975 for a period of time. Richard Ackerman testified that they were living together at the time of the 1977 trial. Plaintiff husband had had rheumatoid arthritis since 1961 and had been undergoing gold therapy for about ten years before the accident. He had several operations in 1968, including plastic implants in four knuckles of each hand and some reworking of the tendons. Thus, a principal claim for plaintiff Richard Ackerman as a result of the accident to the Volkswagen he was driving was one of aggravation of a pre-existing condition. 130 Mrs. Ackerman, who apparently resides in California, did not testify at the trial and her deposition had not been taken. However, her husband testified about the effect of the accident on their relationship and upon his ability to be of help around the household. Defendant moved at trial for dismissal of the wife's per quod claim because she did not appear or "provide affirmative proof in some form." Defendant also moved for judgment n.o.v. on the ground that the wife's claim should not have gone to the jury. Both motions were denied. The award did not shock the conscience of the trial judge or convince him that it was manifestly unjust. No motion was made for a new trial as to damages or for remittitur, and defendant at oral argument indicated that the sole ground for this appeal was that the claim should not have been allowed to go to the jury. We know of no requirement that the spouse asserting a per quod claim must do so by personal testimony, rather than through testimony of other competent witnesses. There is no merit to defendant's contrary contention. We have carefully reviewed the record, the transcripts of the motion for judgment n.o.v., the reasons given by the trial judge for the denial of the motions as to the wife's claim, and we are satisfied that there is no merit to the issue raised on this appeal. R. 2:11-3(e)(1)(A) and (E). We also note that the judgment appealed from is supported by sufficient credible evidence. See Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974). Although we might be inclined to agree that the award on the per quod claim is on the high side, it is not the function of the court to interfere with the quantum of damages assessed by a jury unless so disproportionate as to shock the conscience and convince the court that to sustain the award would be manifestly unjust. See Baxter v. Fairmont Food Co., 74 N.J. 588 (1977); Sweeney v. Pruyne, 67 N.J. 314 (1975), and Taweel v. Starn's Shoprite Supermarket, 58 *131 N.J. 227, 236 (1971). In any event, since no new trial or remittitur was sought we need not reach this question. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519630/	646 S.W.2d 302 (1983) CITY OF DALLAS, Appellant, v. Shirley S. BRADFORD, Appellee. No. 05-82-00129-CV. Court of Appeals of Texas, Dallas. February 1, 1983. 303 Robert S. Dickey, Dallas, for appellant. Charles M. Wilson, III, Dallas, for appellee. Before GUITTARD, C.J., and CARVER and FISH, JJ. FISH, Justice. The City of Dallas appeals Shirley S. Bradford's recovery of worker's compensation benefits for total and permanent disability resulting from the injuries she sustained in an automobile accident. The parties agreed at trial that the dispositive issue was whether Bradford was in the course of her employment for the City at the time of her accident. After a non-jury trial on stipulated facts, the trial court rendered judgment for Bradford. Because we disagree with the trial court's conclusion that Bradford was in the course of her employment, we reverse and render judgment that Bradford take nothing. Bradford was employed as a public health nurse by the City of Dallas. Her principal work address was at the Harris-Oak Cliff Health Center, but she was regularly required to leave that location during a part of each work day to provide health care services in homes and to conduct clinics at other places. From time to time, Bradford was called upon, by pre-arrangement or by a telephone call to her home, to make home visits or to stop at other clinics before reporting to the Harris-Oak Cliff Center. To perform her duties as a nurse for the City, Bradford was required to furnish her own transportation and to make daily use of a private automobile. When she was hired, Bradford was required to supply information concerning her automobile and its availability for use in the performance of her duties. According to the City's policy of reimbursement to employees for the use of private vehicles to accomplish official city business, Bradford received fifteen cents per mile traveled in the performance of her duties. She received an additional lump sum of twenty-five dollars per month under a City policy of paying this amount to employees who used their private vehicles to perform official duties more than fifteen working days or two hundred miles per month. The distance traveled to or from work was not included, however, in computing either mileage reimbursement or entitlement to the monthly lump sum payment. Bradford's mileage reimbursement commenced at her first daily assigned work location and ceased at her last daily assigned work location, whether the location was the site of a home visit, other clinics, or the Harris-Oak Cliff Health Center. On the morning of February 10, 1978 Bradford left her home to begin her work day. She was traveling in her private vehicle to the Harris-Oak Cliff Health Center when she was involved in an automobile collision. The injuries she sustained from the collision are the basis of this worker's compensation claim. Generally, injuries sustained by employees while traveling on public streets and highways in going to and returning from work are not compensable because they are not incurred in the course of employment as required by Tex.Rev.Civ.Stat. Ann. art. 8309, § 1 (Vernon 1967). Jecker v. Western Alliance Insurance Co., 369 S.W.2d 776, 778 (Tex.1963); Texas General 304 Indemnity Co. v. Bottom, 365 S.W.2d 350, 353 (Tex.1963); American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957). To have a compensable injury for injuries received while going to or from work, an employee must show that his claim is within the provisions or article 8309, § 1, that is, that his injuries were of a kind and character that had to do with and originated in the work, business, trade or profession of the employer, and were received while the employee was engaged in or about the furtherance of the affairs or business of the employer. Bottom, 365 S.W.2d at 352-53; Liberty Mutual Insurance Co. v. Chesnut, 539 S.W.2d 924, 926 (Tex.Cir.App.-El Paso 1976, writ ref'd n.r.e.). The City urges that the trial court erred in rendering judgment for Bradford because the stipulated facts show that she was not, as a matter of law, in the course of her employment for the City at the time of the accident. Bradford responds that she was in the course of her employment, citing Tex.Rev.Civ.Stat.Ann. art. 8309, § 1b (Vernon 1967) to support her contention. That section provides: Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip. This section was construed by the Supreme Court in Janak v. Texas Employer's Insurance Association, 381 S.W.2d 176 (Tex.1964), as follows: Sec. 1b, Article 8309, enacted in 1957, has two parts. The first part declares injuries during travel to be in the course of employment, and therefore compensable, only when transportation is (1) furnished as a part of the contract of employment, or (2) is paid for by the employer, or (3) is under the control of the employer, or (4) when the employee is directed to proceed from one place to another place. Id. at 179. Bradford maintains that she falls within Janak's second category because her transportation was paid by the City, and within Janak's fourth category, because the City directed her to proceed from one place to another. Payment of Transportation Bradford argues that a portion of her transportation was paid by the City because she was reimbursed for each mile traveled in the performance of official business and because she received twenty-five dollars a month in addition to her mileage reimbursement, thus bringing her within the coverage of article 8309, § 1b. She cites Gardner v. United States Fidelity & Guaranty Co., 574 S.W.2d 636 (Tex.Civ.App.-Amarillo 1978, writ ref'd n.r.e.); T.E.I.A. v. Adams, 555 S.W.2d 525 (Tex.Civ.App.-Amarillo 1977, writ ref'd n.r.e.); and Liberty Mutual Insurance Co. v. Chesnut, 539 S.W.2d 924 (Tex.Civ.App.-El Paso 1976, writ ref'd n.r.e.) in support of her position. In each of these cases, however, evidence was presented to show that the employer had agreed to compensate the employee for expenses incurred in going to and returning from the work site. Here, by contrast, the parties stipulated that Bradford "was not entitled to mileage reimbursement from [the City] for the miles driven while on her way to begin her work day ...." They also stipulated that the 305 twenty-five dollars monthly payment was based on the number of miles driven in the performance of her official duties. Thus, there is no evidence that the City paid Bradford for transportation on her way to work. In the absence of such evidence, we are unable to conclude that Bradford's transportation was paid for by her employer as required by article 8309, § 1b. Proceeding From One Place to Another Pursuant to Contract Bradford also submits that she was in the course of her employment because she was proceeding from one place to another under her contract of employment when the accident occurred. This exception to the general rule of non-compensability is well established by article 8309, § 1b and the cases construing it. Agricultural Insurance Co. v. Dryden, 398 S.W.2d 745, 746-47 (Tex.1965); Janak, 381 S.W.2d at 179; Jecker, 369 S.W.2d at 778. The rationale for the exception is that since the worker's employment requires him to subject himself to the risks and hazards of streets and highways, his injuries grow out of his employment. Jecker, 369 S.W.2d at 778-79. The Supreme Court has held that this exception is not available to an employee unless he shows that he was "directed in his employment to proceed from one place to another place." Jecker, 369 S.W.2d at 779 (emphasis added). The employee can make this showing "if there is evidence that (1) he was traveling on the highway pursuant to express or implied provisions of his employment contract that he do so in performance of his duties and (2) that he would have made the trip had there been no personal or private affairs to be furthered and would not have made it had there been no business of his employer to be furthered." Id. Bradford reasons that because she was required to use her vehicle in the performance of her duties, the driving of her automobile to work was an expressed or implied requirement of her employment contract. We do not believe that this conclusion follows. The parties stipulated that Bradford was not prohibited from parking her private automobile overnight in the parking lot at the Harris-Oak Cliff Health Center. With no special mission assigned to her requiring any travel by her apart from, or in addition to, her regular and personal transportation to and from work, we cannot say that Bradford's contract of employment required her to subject herself to any risks and hazards of the streets and highways. Dryden, 398 S.W.2d at 747. We also find support for this result in Meyer v. Western Fire Insurance Co., 425 S.W.2d 628 (Tex.1968). In Meyer, the compensation claimant was a supervisor for a home builder. At the time of injury, the claimant was traveling from his home, where he had made some business calls and completed some paperwork in preparation for a business meeting, to a subdivision in Northeast Austin where he intended to make service calls. The Supreme Court framed the issue of course of employment in the following manner: Reduced to its simplest terms, the problem is whether he was already working, or was simply on his way to work, at the time of the accident. Id. at 628. The Court held that he was on his way to work and, accordingly, denied recovery. Here, likewise, it is undisputed that Bradford had not yet begun working but was simply on her way to work. She was not yet traveling in the performance of her duties and was not yet being directed in the performance of her employment to proceed from one place to another. Prior Case Law Both parties have cited to us cases decided before the enactment of article 8309, § 1b, which they contend are controlling. Although these cases are not consistent, the most authoritative is United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 374, 136 S.W.2d 210 (1940). That decision supports our holding that, as a matter of law, Bradford was not in the course of her employment. A contrary result was reached earlier in Maryland Casualty Co. v. Smith, 306 40 S.W.2d 913 (Tex.Civ.App.-Dallas 1931, no writ), but Smith was questioned by the Supreme Court in Flanagan. Later Smith was cited without disapproval, though distinguished on its facts, in Superior Insurance Co. v. Jackson, 156 Tex. 61, 291 S.W.2d 689 (1956). We conclude that article 8309, § 1b resolves any previous uncertainty and prevents Bradford's injury from qualifying as one sustained in the course of her employment. See Dryden, 398 S.W.2d at 747. Reversed and rendered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519656/	646 S.W.2d 516 (1982) S.M. McASHAN, Jr., et ux., Appellants, v. RIVER OAKS COUNTRY CLUB, et al., Appellees. No. 01-82-0021-CV. Court of Appeals of Texas, Houston (1st Dist.). December 9, 1982. Rehearing Denied December 30, 1982. 517 St. John Garwood, Jr., Houston, for appellants. Sam Cruse, Jr., Dexter Joyner, Houston, for appellees. Before JACK SMITH, PRICE and STILLEY, JJ. OPINION STILLEY, Justice. This is a suit by the S.M. McAshans (McAshans) to permanently enjoin River Oaks Country Club (River Oaks) from constructing a paved parking lot near appellants' yard or using certain property north of their home for any purpose other than a golf course. The court, after a non jury trial, refused to enjoin the construction and use of the parking lot, but permanently enjoined River Oaks from constructing or erecting any improvements, except those that are usual and customary for the improvement or maintenance of a golf course proper, on that portion of the Club property lying west of the existing clubhouse and its southerly parking lot. The court also permanently enjoined River Oaks from using the above mentioned property situated west of the clubhouse for any purpose other than a golf course. The McAshans' appeal from that part of the judgment denying them an injunction as to the paved parking lot contiguous to a northeast portion of their yard. River Oaks appeals from those parts of the judgment enjoining it from using that property lying west of its clubhouse for any purpose other than a golf course or from erecting or maintaining any improvements on that property other than those connected with a golf course proper. We reverse and render as to that part of the judgment granting the injunction; otherwise we affirm. THE McASHAN APPEAL The McAshans' suit for injunction alleged that the construction of a paved parking lot near their yard would create a nuisance and that they, through their predecessors in title, had acquired an easement by estoppel and an easement appurtenant over the golf course property, which easement required River Oaks to use and maintain the property as a golf course. By three points of error, the McAshans urge that the court erred: 1) in excluding the parking lot area from its injunction, 2) in making finding of fact number 23, stating that the paving of the parking lot area does not constitute a recoverable element of damage to the McAshans, and 3) in making finding of fact number 28, stating that the construction of the paved parking area would not necessarily create a nuisance. The McAshans contend that the evidence establishes as a matter of law that paving of the parking lot would create a nuisance and would cause them recoverable damage. This dispute arose because of the use of an area lying north and east of the McAshans' home and yard situated in Country 518 Club Estates, a subdivision in Houston commonly referred to as River Oaks. The northern boundary of the McAshans' yard abuts a part of the southern boundary of that 186 acre tract owned and used as a country club. In May 1924, the home and lot owned by the McAshans was conveyed by warranty deed from Country Club Estates, a real estate development company to W.L. Clayton and wife, the parents of Mrs. McAshan. In December 1931, the Claytons gave the home and lot to the McAshans as a Christmas present. On July 16, 1925, the 186 acres comprising the River Oaks Country Club was conveyed by warranty deed from Country Club Estates to the country club. The record indicates that both Mr. Clayton and the country club had sale agreements with Country Club Estates before they received their warranty deeds. In 1967, River Oaks Country Club built a new clubhouse to the west of the original club. As a result, some of the golf course holes were altered and some were renumbered. Gradually, the club began using space west of the new clubhouse, not previously used, for overflow parking. In about 1971, the club began using the "disputed area" northwest of the McAshans' property for overflow parking. At that time and up to the time it was paved, the "disputed area" was part of the "rough" on the first hole of the golf course. The "disputed area" begins at a point approximately 17 feet west of the northeast corner of the McAshans' lot and encompasses an area north and eastward from that point. The McAshans objected to the use of this area for overflow parking and conveyed their objections to the club's board of directors. Through the years these objections were reiterated, but the unpaved area was still used for overflow parking. The suit for injunction was filed when the paving of the "disputed area" began. The McAshans' lot is 176 feet wide; its northern boundary abuts a part of the southern boundary of the club property. The "disputed area" parking abuts only the 17 most easterly feet of the north boundary of the McAshan lot. A view of the parking lot in question from the McAshan home is mostly obscured by trees and shrubbery. The McAshans' main objection to the paving of the parking lot arose from the parking activity in the past and the probability that the same objectionable activities would continue if the "disputed area" was paved. The McAshans testified that in the past their sleep was disturbed by the car lights, the noise from automobiles and bull horns. The parking lot attendants would screech the car tires in haste to deliver a car and receive a larger tip; cars would get stuck in the mud (the paving would cure this); and liquor bottles were strewn in the area. Generally, the McAshans complained of specific examples of parking activity that would interrupt their right to privacy, peace and security. The club president testified that certain steps were taken to alleviate the McAshans' complaints, such as the attendant's no longer using bullhorns to facilitate parking and changing the direction that the cars would be parked and exit the disputed area. Before the construction and operation of the parking lot could properly be enjoined, as a nuisance, it was the McAshans' burden to show that River Oaks' use of the parking lot would create a nuisance per se or that its proposed use would necessarily create a nuisance. Conner v. Smith, 433 S.W.2d 911 (Tex.Civ.App.-Corpus Christi 1968, no writ). The evidence regarding the proposed use of the parking lot was not such as would compel a finding that such use would necessarily create a nuisance. The club's board of directors is empowered to limit the times of its use as well as the manner of its use to an extent that only the most sensitive might object. It can, for example, forbid valet parking; it could forbid parking except for designated times; it can police the area to insure that automobile lights will not shine in the direction of the McAshans' home or that motors are not raced or tires not screeched; and it could provide personnel to insure that users did not deposit rubbish in the area. The mere prospect of future annoyance or injury from a structure or an instrumentality 519 not a nuisance per se is not ground for an injunction. Schulman v. Houston, 406 S.W.2d 219 (Tex.Civ.App.-Tyler 1966, writ ref. 412 S.W.2d 34). The evidence did not show as a matter of law that the construction would damage the McAshans, nor did it prove as a matter of law that the construction would necessarily create a nuisance, and there was sufficient evidence to support the trial court's finding that the parking lot would not necessarily create a nuisance. Since we will later hold that the evidence was insufficient as a matter of law to prove an equitable easement in favor of the McAshans, appellants' first point of error, complaining of the omission of the "disputed area" from the easement, is moot. RIVER OAKS' APPEAL River Oaks' appeal complains of that part of the judgment forbidding it from using certain property west of its clubhouse for any purpose other than a golf course. In its second point of error, River Oaks urges that the trial court erred in finding an equitable easement in favor of the McAshans because there was no evidence, or the evidence was insufficient, to support the elements necessary to be shown to support such an easement. We sustain this point of error. Although the McAshans pled that they had acquired an easement by estoppel and an easement appurtenant, only the easement by estoppel is urged. Generally, the doctrine of easement by estoppel or estoppel in pais holds that an owner of land may be estopped to deny the existence of an easement by making a representation that has been acted upon by a purchaser to his detriment. Storms v. Tuck, 579 S.W.2d 447 (Tex.1979). Essential to the creation of estoppel is proof that the misrepresentation was communicated to, believed and relied on by the innocent party. Storms v. Tuck, Id. Estoppel in pais has been applied most often when an owner sells land with reference to a map or plat upon which are shown and designated streets, alleys, and similar areas. It has been held that when a purchaser, relying upon such representations, buys with reference thereto and spends money to make improvements, the seller will not be heard to say that such easements do not exist. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962) citing Oswald v. Grenet, 22 Tex. 94 (1858); Harrison v. Boring, 44 Tex. 255 (1875), and Lamar County v. Clements, 49 Tex. 347 (1878). Appellants' second point of error alleges that the evidence was legally and factually insufficient to show that any representation was made by the seller or that there was a reliance on the representation by the purchaser. In support of their claim of easement by estoppel, the McAshans alleged and presented evidence that their predecessors in title purchased the golf course lot and built the home in reliance on a representation that the club property north of their lot and home would be used as a golf course. Prior to 1923, Country Club Estates company acquired approximately 1100 acres of land and began developing an exclusive housing subdivision. 186 acres from this tract was set aside for use as a country club, and, since 1925, these 186 acres have been continually used as a country club by the members of River Oaks Country Club. In 1922, Mr. W.L. Clayton began construction of a home on Lot 8, Block 1 of Country Club Estates. The home was used by Mr. Clayton until December of 1931, when he conveyed it to his daughter, Mrs. McAshan, and her husband, Mr. McAshan. Mr. McAshan testified that when Mr. Clayton gave him the documents pertaining to the home, included therein was a plat prepared by H.A. Kipp in January 1924, which depicted a golf course immediately north of the McAshans' lot and home; that Mr. Clayton told him that some years before, Mr. W.C. Hogg, one of the founders of Country Club Estates, told Mr. McAshan that the property north of their home would be used as a golf course and would never be 520 used commercially or for apartments. Although there is no direct testimony that Mr. Clayton relied on the map of January 1924, the McAshans claim that the map and the location of their home, together with the undisputed fact that the property has been continuously used as a golf course for almost 60 years, creates an inference that W.L. Clayton relied on a representation that the property north of their lot would be used indefinitely as a golf course. The testimony is neither legally nor factually sufficient to support a finding that Mr. Hogg made such a representation to Mr. Clayton, or that Mr. Clayton relied on such representation, regarding the future use of the Country Club property north of the McAshans. The testimony was hearsay and is of no probative value in proving the representation or a reliance. The map dated January 1924 was prepared well after the construction of the house began in 1922, so that particular map could not have been relied on by Mr. Clayton to locate the house on the lot. The deed to Mr. Clayton referred to a map prepared by H.A. Kipp, but did not state the date the map was prepared. The evidence shows that a map prepared by H.A. Kipp dated May 1, 1924 was recorded May 15, 1924, but the Kipp map dated January 1924 was never recorded. The deed conveying the Clayton home to the McAshans on December 24, 1931, referred to the recorded map prepared by H.A. Kipp. There was other promotional material introduced showing that a golf course was located on the River Oaks Country Club property; however, this material was exhibited after Mr. Clayton acquired the home, and it does not promise a golf course in perpetuity on any particular area of the River Oaks property. We limit our holding to that previously stated, that there is no evidence and insufficient evidence adduced at trial to establish an easement by estoppel, and our opinion should not be construed as granting permission for the further extension of the parking area westward along the McAshans' lot. We hold only that the evidence adduced at trial does not establish the McAshans' right to injunctive relief. The judgment of the trial court refusing to enjoin River Oaks from using the paved portion ("disputed area") for parking is affirmed; that part of the judgment granting the McAshans' injunctive relief is reversed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519667/	646 S.W.2d 48 (1983) JACKSON EXCAVATING COMPANY, Petitioner-Appellant, v. ADMINISTRATIVE HEARING COMMISSION of the State of Missouri, Michael C. Horn, Commissioner, and Department of Revenue of the State of Missouri, Ray S. James, Director of Revenue, Respondents. No. 63768. Supreme Court of Missouri, Division No. 1. February 23, 1983. John L. Oliver, Jr., Cape Girardeau, for petitioner-appellant. John Ashcroft, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondents. JAMES R. REINHARD, Special Judge. The sole question presented on this appeal is whether machinery and equipment used to process "raw" water into potable water is machinery used in manufacturing and, thus, exempt from the sales and use tax. In 1977, petitioner, Jackson Excavating Company, entered into a contract with Missouri Utilities Company of Cape Girardeau, Missouri, to construct a water treatment purification plant, known as Treatment Plant No. 2. In the course of completing the contract, petitioner purchased and installed certain machinery and equipment necessary to purify water for human consumption. On December 27, 1979, respondent, the Missouri Department of Revenue, assessed petitioner for unpaid use tax in the amount of $4,378.52, based upon an audit covering the period from January 1, 1977, to December 31, 1978. On January 9, 1980, petitioner filed a petition for review with the Administrative Hearing Commission claiming the machinery and equipment was exempt from the use tax pursuant to § 144.030.3(4), RSMo. 1978.[1] The Administrative Hearing Commission determined that the machinery and equipment installed in Treatment Plant No. 2 were not exempt from the tax because they were not used in a manufacturing process. Following that decision, petitioner filed with this Court a petition for judicial review pursuant to § 161.337. This Court has jurisdiction to review the final decision of the Administrative Hearing Commission because construction of a revenue law of this State is involved. Mo. Const. Art. V, § 3; Goldberg v. Administrative Hearing Commission, 609 S.W.2d 140, 142 (Mo.banc 1980). Section 161.338 provides that a decision of the Administrative Hearing Commission: shall be upheld when authorized by law and supported by competent and substantial evidence upon the whole record, ... and if the approval or disapproval of the exercise of authority in question by the 49 administrative hearing commission does not create a result or results clearly contrary to that which the court concludes were the reasonable expectations of the general assembly at the time such authority was delegated to the agency. But of course, where a question of law is involved, it is a matter "for the independent judgment of the reviewing court, and correction where erroneous." Daily Record Company v. James, 629 S.W.2d 348, 351 (Mo.banc 1982). Section 144.030.3(4) provides that the following machinery and equipment shall be exempt from sales tax:[2] Machinery and equipment, and the materials and supplies solely required for the installation or construction of such machinery and equipment, purchased and used to establish new or to expand existing manufacturing, mining or fabricating plants in the state if such machinery and equipment is used directly in manufacturing, mining or fabricating a product which is intended to be sold ultimately for final use or consumption; The facts are undisputed. The following machinery and equipment were incorporated into Treatment Plant No. 2: aerator tank, induced draft aerator with accessories, blowers, header-lateral overdrain with accessories, a rapid mix device, backflow preventor, manganese greensand, and hardware. The water purification process entails no less than five major steps and at least eight separate functions which are performed in order to make the water potable and salable. First, raw water is drawn from the ground table in a 120-foot well and brought up to the purification plant. The raw water is then channeled into the aerator where oxygen is introduced to oxidize the iron and manganese contained in the water. In addition, this process removes carbon dioxide and hyrogen sulfide from the water. After the water passes through the aerator, chemical polymers and chlorine are added at the chemical feeds. The water then proceeds to the rapid mix where these chemicals are thoroughly mixed with the water. After it leaves the rapid mix, the water is transported to the clarifier where a polymer precipitates the oxidized iron and manganese particles. In addition, potassium manganate, a strong oxidizer, is added to oxidize any remaining iron and manganese and to regenerate the manganese greensand. Flouride is also added at this point for tooth protection. The next step involves filtering, where the iron and manganese oxide particles are removed. The water is drawn from the filters and transferred to a large pipe where zinc polyphosphate is added for corrosion control. A final chlorination then takes place to entirely disinfect the water and prevent bacteria from invading the system, thereby completing the water purification process. At each stage of the process, the backflow preventor operates to prevent processed or partially processed water from flowing into unprocessed water and also to prevent substances already removed from flowing back into the potable water. The water purification plant installed in Cape Girardeau was required by the regulations promulgated by the Missouri Department of Natural Resources, Division of Environmental Quality, under the Missouri Public Drinking Water Program, which are set forth in 10 CSR 60-4.070. These regulations make it illegal to dispense water having secondary contaminants above certain stipulated levels. The Missouri Sales/Use Tax Law does not define "manufacturing." The term is not easy to define since it has many applications and meanings that vary depending upon the circumstances of its use. State ex rel. AMF Incorporated v. Spradling, 518 S.W.2d 58, 60 (Mo.1974). This Court has used two different definitions of "manufacturing" within the context of § 144.030.3(4). In West Lake Quarry & Material Co. v. Schaffner, 451 S.W.2d 140 (Mo.1970), this Court held that the process of grinding, crushing, and sorting quarried 50 rock into various sizes for many different commercial uses was manufacturing. The Court quoted with approval from City of Louisville ex rel. v. Howard, 306 Ky. 687, 208 S.W.2d 522, 527 (Ky.1947), which defined manufacturing as a process that "takes something practically unsuitable for any common use and changes it so as to adapt it to such common use...." 451 S.W.2d at 143. In Heidelberg Central, Inc. v. Director Dept. of Rev., 476 S.W.2d 502 (Mo.1972), this Court without reference to West Lake Quarry or its definition of manufacturing held that printing presses used to produce business forms, stationery, printed advertising, postcards, and church bulletins, were entitled to the use tax manufacturing exemption because "[t]he printers ... did produce new and different articles from raw materials by the use of machinery, labor and skill, and they produced products for sale which had an intrinsic and merchantable value, and were in forms suitable for new uses." 476 S.W.2d at 506. In State ex rel. AMF Incorporated v. Spradling, 518 S.W.2d 58 (Mo.1974), we ruled that the process of retreading a worn tire carcass and making it usable was not manufacturing. There, we cited both West Lake Quarry and Heidelberg Central and held that the process fit within neither definition; that is it neither involved the "transformation of original raw material" nor did it involve "taking something practically unsuitable for any common use and changing it so as to adapt it to such common use." 518 S.W.2d at 62. Finally, in Wilson & Co., Inc., v. Department of Revenue, 531 S.W.2d 752 (Mo.1976), this Court held that the conversion of live hogs into marketable portions of food for human consumption and into other marketable production fit the definitions of manufacturing set forth in West Lake Quarry and Heidelberg because it was "a `process which took something practically unsuitable for any common use and changed it so as to adapt it to ... common uses'" and it was "`the production from raw material of new and different salable articles for new and different uses.'" 531 S.W.2d at 755. The Department of Revenue takes the position that the process of water purification employed by Missouri Utilities Company does not produce a new article, but begins with water and ends with water. Thus, it contends that the process is not manufacturing. It also asserts that water as pumped from the well is already suitable for common use, and therefore cannot be the subject of a manufacturing process. The petitioner admits in its brief that water does have a "common use" for irrigation purposes before it is purified. The Department of Revenue, though, admits that the question of whether the treatment or "purification" of water constitutes manufacturing for tax purposes has never been addressed by this Court. In support of its position, the Department relies upon Fountain v. St. Joseph Water Co., 352 Mo. 817, 180 S.W.2d 28 (Mo.1944) and the Annotation in 17 A.L.R. 3d 7, 58 (1968). In Fountain v. St. Joseph Water Co., the issue was whether a water company, engaged in the business of purifying water it extracted from the Missouri River for sale to its customers, was a "retailer" and, therefore, exempt from the Fair Labor Standards Acts of 1938. The Court in Fountain examined the company's water purification process, and determined that it was a retailer of water, not a manufacturer. Given that the issue in Fountain concerned the exemption provided by Congress in the Act for "retailers," and that the consideration of whether the water company was engaged in "manufacturing" was in a context wholly unrelated to that term as used in § 144.030.3(4), we find the Department's reliance upon Fountain misplaced. In its brief, the Department states, "[i]n several other jurisdictions, the cleansing of water by filtration or distillation has been held not to constitute manufacturing within the meaning of a tax statute. See Annotation 17 A.L.R. 3d 7, 58 (1968)." The most recent case cited there on the issue is Prestonsburg Water Company v. Prestonsburg Board of Supervisors, 279 Ky. 551, 131 S.W.2d 451 (Ky.1939). In Prestonsburg *51 Water Company, the Kentucky court held that the filtration system used to purify water from the Big Sandy River was not used in manufacturing. The court observed that the water as it came from the river contained mud, silt, and acid from refuse mines. These materials were removed and the water was purified and rendered fit for use and consumption. The court concluded that after the purification process the article was still water; hence, no manufacturing. It is readily apparent this case supports the Department's position. Water is water ergo, no manufacturing process. However, the Kentucky Supreme Court expressly overruled Prestonsburg Water Company in Department of Revenue v. Allied Drum Service, Inc., 561 S.W.2d 323 (Ky.1978). In Allied Drum Service, the sole question was whether machinery used to process used metal drums was machinery used in manufacturing and, thus, exempt from the sales and use tax. There, as here, the taxing authority argued no manufacturing occurred because the process ended with the same article with which it began. The Kentucky Supreme Court observed that cases such as Prestonsburg Water Company were supportive of this position, but found the reasoning therein not in harmony with other opinions where manufacturing was found even though the end product was, in the Department's view, nothing new. The Court again examined the facts in Prestonsburg Water Company and observed that the end product was something new, "water fit for use," and expressly overruled Prestonsburg. 561 S.W.2d at 326. We agree with the Kentucky Supreme Court that the argument that water is water is an over-simplification. In West Lake Quarry, the quarry began with rock and ended with rock; in Heidelberg Central, the printers began with paper and ended with paper; in Wilson & Co., the meat packer began with pork and ended with pork. If we were to accept the Department's argument then all three of these cases were wrongly decided. Public awareness of the need for pure drinking water has resulted in the passage of statutes authorizing the promulgation of rules and regulations for the maintenance of a safe quality of water dispensed to the public. See § 640.100-.140, RSMo.Supp.1982, the Missouri Safe Drinking Water Act; 10 CSR 60-4.010.090. As a result, water companies expend millions of dollars on treatment facilities to effectuate the sound public policy embodied in such statutes and regulations. Clearly, water, as examined here, is not just water. It is also evident that the process here fits within the definition of manufacturing first set forth in Heidelberg Central and recognized in Spradling and Wilson & Co.; a transformation of a raw material by the use of machinery, labor and skill into a product for sale which has an intrinsic and merchantable value in a form suitable for new uses. The process before us makes more than a superficial change in the original substance; it causes a substantial transformation in quality and adaptability and creates an end product quite different from the original. It creates water fit for human consumption. Allied Drum, 561 S.W.2d at 323. That the process involves a raw material already suitable for common use is of no consequence. The process fits within one of the definitions of manufacturing which this Court has recognized in the context of § 144.030.3(4). The judgment of the Administrative Hearing Commission is reversed. GUNN, P.J., RENDLEN, C.J., and CRANDALL, Special Judge, concur. BILLINGS and DONNELLY, JJ., not sitting. NOTES [1] All citations are to RSMo. 1978, unless otherwise noted. [2] Section 144.615(3) makes this exemption applicable to the use tax. Floyd Charcoal Co. v. Director of Revenue, 599 S.W.2d 173, 176 (Mo. 1980).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519664/	646 S.W.2d 759 (1983) B & D INVESTMENT COMPANY, INC., et al., Appellants, v. Charles SCHNEIDER, et al., Respondents. No. 63976. Supreme Court of Missouri, En Banc. February 23, 1983. Rehearing Denied March 29, 1983. 760 Ronald N. Compton, St. Louis, for appellants. Thomas W. Wehrle, County Counselor, Karen C. Moculeski, Asst. County Counselor, Clayton, for respondents. ALMON H. MAUS, Special Judge. This appeal involves the question of whether or not a taxpayer's failure to comply with § 139.031(1) bars recovery of ad valorem taxes paid as the result of an invalid increase in assessed valuation. Obviously, this appeal by the taxpayer involves the construction of a revenue law. Jurisdiction is in this Court. Mo. Const. art. V, § 3. The action was commenced by the taxpayer's petition seeking recovery against the named defendants as Assessor and Collector of St. Louis County. After discovery, the motion of the defendants for a summary judgment was sustained. The propriety of that judgment will be measured by the facts developed in connection with that motion most favorable to the taxpayer. 761 A very simplified statement of the facts, established as aforesaid, will be sufficient for consideration of the points raised by this appeal. The real property in question consists of two separately assessed tracts in St. Louis County. For the year 1975 the Assessor valued the property at $806,230. However, on December 8, 1975, the State Tax Commission reduced the valuation to $634,218. Taxes on the real property for 1975 were calculated and paid upon the latter valuation. For 1976, the property was again assessed at $806,230. The Assessor gave the owner of the property no notice of the assessment at that figure. The 1976 taxes on the real property were calculated and paid upon a valuation of $806,230. This valuation was shown upon the tax statements. The taxes were paid before December 31, 1976. The owner at the time of paying the taxes did not file with the Collector a written statement protesting all or any part of the taxes so paid. § 139.031(1). The real property was assessed and taxes thereon were paid in like manner for the years 1977, 1978 and 1979. While the real property had successive owners during those years, all are plaintiffs in this action. They will be collectively referred to as the taxpayer. By the petition in this cause, the taxpayer seeks to recover that portion of the taxes paid for those years resulting from the difference in valuation between $634,218 and $806,230, a total of $55,709.72 plus interest and costs. One named defendant was the Assessor of St. Louis County at the time the petition was filed. He had held that capacity since 1978. The other named defendant was the Collector of St. Louis County at the time the petition was filed. It does not appear how long that named defendant held that capacity. In addition to denials, the defendants by answer alleged recovery was barred by reason of the taxpayer's failure to comply with § 139.031(1). The taxpayer's basic argument is as follows. The increases in valuation for 1976, 1977, 1978 and 1979 were made by the Assessor without notice and were void. Taxes imposed as a result thereof were illegal. John Calvin Manor, Inc. v. Aylward, 517 S.W.2d 59 (Mo.1974) is cited. In the absence of statute, taxes illegally imposed and paid involuntarily or under duress may be recovered in a common law action. The doctrine expressed in Manufacturer's Casualty Ins. Co. v. Kansas City, 330 S.W.2d 263, 80 A.L.R. 2d 1035 (Mo.App.1959) is relied upon by the taxpayer. The taxpayer then cites the following language: "It does not appear, however, that the legislature intended to abrogate those remedies existing prior to the enactment of sec. 139.031 nor to make the procedure set forth in sec. 139.031 the exclusive remedy available to a taxpayer." John Calvin Manor, Inc. v. Aylward, supra, at p. 63. Therefore, it is argued the taxpayer's failure to comply with § 139.031(1) does not bar recovery of the taxes in question. There are many questions that could have been raised concerning the taxpayer's right to recover under the common law doctrine. Without limitation, they include the following. Do the uncontroverted facts show the taxes in question were paid voluntarily within the meaning of the common law doctrine? Compare Franke v. City of St. Louis, 249 S.W. 379 (Mo.1923); Robins v. Latham, 134 Mo. 466, 36 S.W. 33 (1896) with State ex rel. S.S. Kresge Co. v. Howard, 357 Mo. 302, 208 S.W.2d 247 (banc 1947); McGraw-Edison Company v. Curry, 485 S.W.2d 175 (Mo.App.1972). Does the fact the taxes have been disbursed by the Collector bar the taxpayer's recovery? See Gas Service Company v. Morris, 353 S.W.2d 645 (Mo.1962); Annot., Illegal TaxLiability of Collector, 14 A.L.R. 2d 383 (1950). Conceding the valuation was invalidly increased for the first year in question, does it follow the same is true in regard to the subsequent years? However, the defendants joined issue upon the taxpayer's theory and contend that § 139.031(1) does bar recovery. This appeal will be considered upon the theory adopted by the parties. Irwin v. Globe-Democrat Publishing Company, 368 S.W.2d 452 (Mo.1963). This opinion should not be construed as authority by implication upon any facet of the common law remedy that could have been questioned, but was not. 762 Section 139.031, which was a new section when adopted in 1969, must be reconciled with the remedies available to a taxpayer against the imposition of invalid property taxes existing at the time of its adoption. Xerox Corp. v. Travers, 529 S.W.2d 418 (Mo. banc 1975). It must be construed taking into consideration the problems created by those remedies. Person v. Scullin Steel Company, 523 S.W.2d 801 (Mo. banc 1975). At the time § 139.031 was adopted, a taxpayer had three basic remedies. A remedy before an appropriate administrative agency. In regard to an invalid assessment, an appearance before the Board of Equalization with a subsequent appeal to the State Tax Commission. A similar remedy is an application for a refund of taxes paid by reason of a levy which has been declared to be illegal by this Court. § 139.290. While the scope of the remedy has not been definitively defined, the same is true of "any real or tangible personal property tax mistakenly or erroneously paid in whole or in part to the collector." § 139.031(4). A second basic remedy was a common law action to enjoin the collection of taxes invalidly imposed. St. Louis & S.F. Ry. Co. v. Epperson, 97 Mo. 300, 10 S.W. 478 (1889). The third basic remedy was a common law action to recover such taxes paid involuntarily or under duress. State ex rel. S.S. Kresge Co. v. Howard, supra. In respect to the latter remedy, a taxpayer was faced with the problem of determining, at his peril, when the payment of such taxes was involuntary as distinguished from voluntary. On the other hand, that remedy could create serious problems for the taxing authority in that no statement of asserted invalidity was required at the time of payment of such taxes. Taxes for several years could be collected and disbursed by the taxing authority in reliance upon the apparent validity of such taxes. A subsequent refund of such taxes could create serious financial problems for the taxing authority. The purpose of statutes similar to § 139.031 has been summarized. The essential purposes of such statutes are to furnish an adequate and sufficient remedy to the taxpayer, and at the same time to provide an expeditious method by which the various branches of government affected can obtain the revenue necessary for their maintenance without protracted delay or the hazards incident to the former procedure, since it is in effect a procedure to review the decisions of the taxing authorities. Moreover, the statutory requirement is intended not only to furnish proof that the payment was involuntarily made, but also to warn the tax collector that the tax is claimed to be illegal; and the filing of a protest has two purposes, to serve notice on the government of the dissatisfaction of the taxpayer, and to define the grounds on which the taxpayer stands. 84 C.J.S. Taxation § 638 (1974). It is clear that an application for a refund is the exclusive method for recovery of invalidly imposed sales taxes from the Director of Revenue. Charles v. Spradling, 524 S.W.2d 820 (Mo. banc 1975). While that decision is primarily based upon the doctrine of sovereign immunity, it is also observed: "In addition, on grounds of public policy, the law discourages suits for the purpose of recovering taxes alleged to have been illegally levied and collected; and it is for this reason of policy that the remedy of a refund, including time in which it must be filed, is the exclusive remedy." Charles, at p. 823. It is a firmly established principle that when an administrative remedy is adequate, ordinarily that remedy is exclusive. C & D Inv. Co. v. Bestor, 624 S.W.2d 835 (Mo. banc 1981). Of course, when because of lack of notice a taxpayer is denied an opportunity to employ an administrative remedy, he will not be denied a judicial remedy. McGraw-Edison. However, the availability of an administrative remedy does not bar other remedies under all circumstances. For instance, when a taxpayer does not question the valuation of his property, but asserts it is not subject to the tax, he need not appear before the Board of Equalization but may enjoin the enforcement of the tax. Washington University v. Baumann, 341 Mo. 708, 763 108 S.W.2d 403 (banc 1937). Further, § 139.031 may provide an alternative remedy. Under circumstances similar to Washington University, a taxpayer may pay the tax in compliance with § 139.031(1) and recover the taxes so paid by filing suit in compliance with § 139.031(2). Mesker Brothers Industries, Inc. v. Leachman, 529 S.W.2d 153 (Mo.1975). Or, when a taxpayer alleges an unconstitutional discriminatory assessment, he may pay the tax imposed as a result thereof in compliance with § 139.031(1) and recover the same under § 139.031(2). Breckenridge Hotels Corp. v. Leachman, 571 S.W.2d 251 (Mo. banc 1978). However, "[w]here, as is the case here, there is no question of overreaching by the taxing authorities, section 139.031 is not a substitute for the administrative provisions relating to the assessment of property for tax purposes. That section may not be used by the taxpayer to avoid the time limitations of §§ 137.290, 138.090, 138.100, and 138.110." (Emphasis added). C & D Inv. Co. v. Bestor, supra, at p. 838. The availability of a remedy under § 139.031 has significantly affected the effectiveness of a taxpayer's pursuit of an administrative remedy against the imposition of illegal taxes. Even though a taxpayer has appealed an assessment to the State Tax Commission, to preserve the asserted error, the taxes, if paid, must be paid in compliance with § 139.031(1). Adcor Realty v. State Tax Com'n., 627 S.W.2d 604 (Mo. banc 1982); Xerox Corporation v. Travers, supra. The letter of protest must be filed "at the time of paying such taxes" and a letter filed 10 days after such payment is ineffective. State ex rel. Nat. Inv. Corp. v. Leachman, 613 S.W.2d 634, 635 (Mo. banc 1981). Further, it is clear that in an action to recover taxes paid under § 139.031(1), the court will consider only the bases of illegality set forth in the letter of protest. Boyd-Richardson Co. v. Leachman, 615 S.W.2d 46 (Mo. banc 1981); Lemay Plastics Div. v. Leachman, 613 S.W.2d 216 (Mo.App. 1981). In Boyd-Richardson a taxpayer argued that it should prevail under Count II of its petition which presented "an equitable cause of action which remains available to the taxpayer, as it has existed for decades in Missouri, and that the protest action under § 139.031 is not the exclusive remedy to contest a tax" at p. 50. The contention was denied. While the point was not emphasized therein, a case recently decided by this Court is decisive of this appeal. In that case the taxpayers had pending before the State Tax Commission an appeal from an allegedly excessive valuation. The taxpayers paid the taxes based on that valuation accompanied by a letter of protest. However, they failed to file suit as required by § 139.031(2). Under those circumstances it was held the State Tax Commission was required to dismiss the appeal. Adcor Realty v. State Tax Com'n., supra. The action of the circuit court ordering the reinstatement of the appeal "apparently under a theory that the Commission should determine the claims in the framework of the `common law'" was reversed. Adcor Realty v. State Tax Comm'n., supra, at p. 605. The establishment of an exclusive remedy against the state for the recovery of taxes illegally collected is not an invasion of constitutional rights, if the remedy afforded is fair and adequate and does not deprive the taxpayer of procedural due process. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S. Ct. 816, 81 L. Ed. 1143 (1937). Whether or not § 139.031 exclusively prescribes the manner in which a taxpayer must proceed in paying illegally imposed taxes before he may recover such taxes by judicial action was not before this Court in John Calvin Manor, Inc. v. Aylward, supra. McGraw-Edison, relied upon by the taxpayer, involved taxes paid before § 139.031 was adopted. That case recognizes the power of the state to prescribe "the procedure to be followed and such other terms and conditions...." McGraw-Edison, at p. 178. In the circumstances of this case, the remedy under § 139.031 provided the taxpayer a fair and adequate remedy as contrasted with the so-called common law action. It is implicit in the decisions of this Court reviewed above that under such circumstances, the taxpayer's remedy under § 139.031(1) was exclusive. This is in harmony 764 with the purpose of the statute. It has been declared to be a part of the common law doctrine: "Assumpsit for money had and received is an appropriate remedy to recover back moneys illegally exacted by a collector as taxes, in all jurisdictions where no other remedy is given, unless the tax was voluntarily paid or some statutory conditions are annexed to the exercise of the right to sue, which were unknown, at common law." (Emphasis added). Cox v. Lott, 79 U.S. (12 Wall.) 204, 20 L. Ed. 370, 372 (1871). The failure of the taxpayer to comply with § 139.031(1) bars the recovery of the taxes in question. This result is not altered by the taxpayer's emphasis that the assessment upon which the taxes were based has been declared "void", again citing John Calvin Manor, Inc. v. Aylward, supra. The term "void" bears many meanings depending upon the context within which it is used. 92 C.J.S. Void and Voidable (1955). It has been appropriately used to define circumstances in which a taxpayer is not required to seek relief before an administrative agency. Washington University. It does properly define the effect of an increased assessment without notice in regard to the availability of an injunction against the collection of taxes to be paid upon the illegal assessment. That is how the term was used in John Calvin Manor Inc. v. Alyward, supra. The term was also used in regard to an increased assessment in another case relied upon by the taxpayer. But, in that case the court was considering a direct attack upon the action of a Board of Equalization. State ex rel. Lane v. Corneli, 351 Mo. 1, 171 S.W.2d 687 (1943). Under circumstances similar to this case, it has been expressly declared that the assessment is voidable but not void. Wymore v. Markway, 338 Mo. 46, 89 S.W.2d 9 (1935). While the same may not be applicable under all circumstances, it has been declared, "It was the collector's duty to collect the tax, unless the assessment was void, and it could not be said to be void if the property was subject to taxation." Ranney v. Bader, 67 Mo. 476, 479 (1878). It is not necessary to further characterize the increased assessment involved in this case. The taxpayer had notice of the increased assessment before choosing to pay the taxes without complying with § 139.031(1). The irregularity in the assessment is not such to excuse such non-compliance. The taxpayer's next point is that the defendants should be estopped from relying upon § 139.031(1). That point has the following factual background. In July, 1976, in response to the taxpayer's inquiry, an employee in the Assessor's office by letter advised the taxpayer the property had not been reassessed for 1976. Aside from the question of the availability of an estoppel against a political subdivision or a public official, Horizons West Properties v. Leachman, 548 S.W.2d 550 (Mo. banc 1977); State ex rel. Southland Corp. v. City of Woodson Terrace, 599 S.W.2d 529 (Mo.App.1980), this point is otherwise not valid. An estoppel, such as that asserted by the taxpayer, must be based upon action taken upon reasonable reliance. In each year in question, before the taxes were paid without compliance with § 139.031(1), the taxpayer had knowledge of the assessed valuation upon which the taxes were calculated. The point is denied. State v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607 (1936). Finally, the taxpayer argues, if all else fails, the summary judgment was improvidently granted because it is at least entitled to recover the taxes paid for 1979 by reason of § 139.031(4). That sub-section authorizes the Collector, upon written application within one year, to refund property taxes "mistakenly or erroneously paid". It is not necessary to determine if taxes correctly computed upon the basis of an intentionally determined assessed valuation and intentionally paid can be considered "mistakenly or erroneously paid". Those interested may start their inquiry with State ex rel. Crawford Cty., etc. v. Bouse, 586 S.W.2d 61 (Mo.App.1979). By this point the taxpayer apparently contends the petition in this action constitutes an application for a refund filed within one year. The summary judgment was 765 rendered upon the taxpayer's first amended petition, which is the only petition before this Court. It was filed January 23, 1981. That petition makes no reference to a written application for a refund nor to § 139.031(4). By its answer to interrogatories the taxpayer stated, "each document that relates to, reflects, or evidences" the allegations of the overpayments were attached tax bills and exhibits identified in the depositions of the defendants. There was no reference to the petition. This issue is not "within the scope of the pleadings, or within the broad scope of probable evidence (authorizing an amendment to the pleadings to conform to the proof) as revealed by the `depositions and admissions on file, together with the affidavits....'" Scott v. Thornton, 484 S.W.2d 312, 314 (Mo.1972). "An appellant may not, as a general rule, overturn a summary judgment by raising in the appellate court an issue of fact that was not plainly disclosed as a genuine issue in the trial court." 6 Pt. 2 Moore's Federal Practice § 56.27(1) (1982). There is a vast difference between a written application for a refund within the meaning of § 139.031(4) and a petition praying for judgment upon the basis of an illegal assessment. The taxpayer may not by first raising the point before this Court create an issue that the petition was such an application or that the denial of a refund is subject to review in this action. Charles; Morris v. Kansas City, 391 S.W.2d 198 (Mo. 1965); Wright & Miller, Federal Practice and Procedure: Civil § 2716 (1973). The point is denied and the judgment is affirmed. RENDLEN, C.J., HIGGINS, GUNN and DONNELLY, JJ., and SEILER, Senior Judge, concur. WELLIVER, J., concurs in result. BILLINGS, J., not sitting. BLACKMAR, J., not participating because not a member of the Court when cause was submitted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519639/	522 F. Supp. 2d 262 (2007) Elizabeth SCOTT, Plaintiff, v. OFFICE OF Rodney ALEXANDER, Member, U.S. House of Representatives, Defendant. Civil Action No. 06-1661 (CKK). United States District Court, District of Columbia. December 3, 2007. 263 264 Michael J. Hoare, Michael J. Hoare, P.C., Washington, DC, for Plaintiff. Gloria Lett, Kimberly C. Williams, Russell Hayes Gore, U.S. House of Representatives Office of House Employment Counsel, Washington, DC, for Defendant. MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, District Judge. This is an employment case brought pursuant to the Congressional Accountability Act of 1995 by Elizabeth Scott, who was employed in the Office of Congressman Rodney Alexander. Currently before the Court is Defendant's [27] Motion to Dismiss Count III of Plaintiff's Supplemental Complaint ("Complaint") and Defendant's [26] Motion for Summary Judgment as to Counts I and IV of the Complaint. After a thorough review of the Parties' submissions and exhibits attached thereto, applicable case law, statutory authority, and the record as a whole, the Court shall grant Defendant's [27] Motion to Dismiss, and deny without prejudice Defendant's [26] Motion for Summary Judgment, for the reasons set forth below. 265 I. BACKGROUND A. Factual Background Plaintiff began working as an intern in the Office of Congressman Rodney Alexander (the "Office") in the fall of 2005.[1]See Pl.'s Suppl. Compl. ¶ 5. In November 2005, Plaintiff was hired into a full-time paid position in the Office as a Scheduler for Congressman Alexander ("the Congressman"). Id. ¶ 6. Plaintiff alleges that the Office's Chief of Staff, Royal Alexander (the "Chief of Staff"), "engaged in a course of misconduct with respect to Plaintiff that included, among other things, inappropriate sex-based comments, ogling and touching." Id. ¶ 7. According to Plaintiff, Defendant removed her as Scheduler and transferred her to a lesser position "at least in part because she resisted the misconduct referenced above and complained of possible sex discrimination." Id. ¶ 10. Thereafter, Plaintiff claims the working conditions became so intolerable that she felt compelled to quit her job at the Office. Id. ¶ 11. Plaintiff filed a four-count Complaint against the Office on September 27, 2006: Count I, sexual harassment (alleging the Chief of Staff sexually harassed her); Count II, discrimination (alleging male and female employees were paid differently because of their sex); Count III, retaliation (alleging her removal as Scheduler was retaliation against her); and Count IV, constructive discharge (alleging working conditions became so intolerable Plaintiff felt compelled to quit her job). Id. ¶¶ 15-24. Plaintiff filed a "supplemental" Complaint on December 28, 2006, adding a fifth Count for post-employment retaliation (alleging the Office retaliated against her when the House of Representatives's Office of the Chief Administrative Officer recouped an overpayment it had inadvertently made to Plaintiff' in her final paycheck). Id. ¶¶ 25-32. Plaintiff asserted these claims under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 ("CAA"), which confers on certain legislative employees the rights and remedies drawn from various labor and employment statutes, including the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. See Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 4-5 (D.C.Cir.2006), cert. denied and appeal dismissed, ___ U.S. ___, 127 S. Ct. 2018, 167 L. Ed. 2d 898 (2007). The CAA also includes an antiretaliation provision prohibiting an employing office from retaliating against an employee because the employee opposed or reported a practice made unlawful by the CAA. Id. B. Procedural Background The Court held an Initial Scheduling Conference with `the Parties on March 16, 2007. Defendant advised the Court that the Supreme Court was expected to hear arguments in Office of Senator Mark Dayton v. Hanson, an appeal of the D.C. Circuit's en banc decision discussing the Speech or Debate Clause of the United States Constitution, Art. I § 6 ("Speech or Debate Clause" or "Clause") in the context of CAA claims.[2]See Def.'s Mot. to Dismiss 266 and for Summ. J. at 5. Defendant further advised the Court that Hanson could have a direct impact on the present case. Id. The Court instructed the Parties to notify the Court after the Supreme Court issued its decision in Hanson, and if necessary, the Court would order the Parties to brief issues related to the Speech or Debate Clause at that time, See Pl.'s Opp'n to Def.'s Mot. for Summ. J. Ex. 1 at 2-3 (March 16, 2007 hearing transcript). In the interim, the Court ordered discovery to begin but declined Defendant's request to set a briefing schedule for Summary Judgment Motions. Id. at 2 ("I would ask that you not just simply file motions [prior to the end of discovery]. You need to contact the court what happens is, especially motions for summary judgment, is the other side usually [files a Motion under Fed.R.Civ.P.] 56(f) . . . So I would ask that you not file something before discovery is done."). The Parties exchanged interrogatories and discovery requests immediately following the hearing. See Def.'s Mot. to Dismiss and for Summ. J. at 5 n. 7. Defendant indicates that the Parties have provided some (but not all) of their interrogatory responses, document productions, and requests for admission. Id. On May 21, 2007, Defendant took Plaintiff's deposition, wherein Plaintiff was questioned about the conduct underlying the allegations in her Complaint. Plaintiff apparently had a difficult time answering Defendant's questions, reportedly using the expression "I don't recall at this time" (or some variation thereof) approximately five hundred and three (503) times.[3]See [32] Def.'s Reply to Pl.'s Opp'n at 3-6. According to Defendant, Plaintiffs testimony establishes that she cannot prove certain elements of her sexual harassment (Count I) and constructive discharge (Count IV) claims. See Def.'s Mot. to Dismiss and for Summ. J. at 28 & n. 26. The Supreme Court issued its decision in Hanson on May 21, 2007, dismissing the appeal for lack of jurisdiction under the CAA and, after construing the appeal as a petition for a writ of certiorari, denying the petition. See Office of Senator Mark Dayton v. Hanson, ___ U.S. ___, 127 S. Ct. 2018, 2020, 167 L. Ed. 2d 898 (2007). The Supreme Court's dismissal of the case confirmed that the D.C. Circuit's Fields decision set forth the governing principles in this Circuit with respect to the Speech or Debate Clause in the context of CAA claims. Accordingly, Defendant notified the Court that the Congressman "expressly asserts the Speech or Debate Clause privilege to its fullest extent as to bar further litigation" of the present suit. Def.'s [24] Mot. for Status Conf. at 2. The Court ordered the Parties to brief the impact of the Speech or Debate Clause on the instant case. See Minute Order dated May 31, 2007. After conferring with this Court, Magistrate Judge Alan Kay, to whom all discovery-related matters had been assigned, ordered a stay of discovery pending a ruling on the Speech or Debate Clause motions. See Minute Order dated June 8, 2007. On July 12, 2007, Defendant filed a Motion to Dismiss Count III of Plaintiffs Complaint based on the Speech or Debate Clause. Defendant also filed a Motion for Summary Judgment on Counts I and IV of the Complaint based on Plaintiffs deposition testimony. Plaintiff filed an Opposition to each Motion on August 24, 2007, and requested relief from the Court pursuant to Fed.R.Civ.P. 56(f), arguing that 267 Plaintiff did not have the opportunity to complete necessary discovery. Defendant filed Replies to each Opposition on September 18, 2007, and claimed for the first time in the Reply that the Speech or Debate Clause applied to Counts I and IV (the claims on which Defendant had brought its Motion for Summary Judgment). II. DISCUSSION A. Motion to Dismiss Plaintiffs Retaliation Claim (Count III) Defendant argues that Plaintiffs retaliation claim must be dismissed because the Speech or Debate Clause of the United States Constitution (1) provides immunity for the Congressman's decision to remove Plaintiff as his Scheduler, or in the alternative, (2) prevents Plaintiff from proving an essential element of her retaliation claim. The Speech or Debate Clause states, in relevant part: The Senators and Representatives shall . . . in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. The Supreme Court has explained that the Speech or Debate Clause provides immunity for all conduct by a Member of Congress ("Member") that consists of core legislative acts, such as speaking, debating, voting, and similar activities undertaken in chambers or in committee. See United States v. Brewster, 408 U.S. 501, 526, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972). The Clause also "protects against inquiry into acts that occur in the regular course of the legislative process or into the motivation for those acts." Id. at 525, 92 S. Ct. 2531. Where the Clause is construed to reach matters occurring in the regular course of the legislative process, such acts "must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel v. United States, 408 U.S. 606, 625, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972). In Fields v. Office of Bernice Johnson, the D.C. Circuit set forth a two-step framework for determining whether the Speech or Debate Clause requires dismissal of a claim under the CAA. 459 F.3d 1 (D.C.Cir.2006) (en banc). The first step requires the Court to determine whether the pleadings expressly predicate liability on a legislative act. The Speech or Debate Clause "operates as a jurisdictional bar when the actions upon which [a plaintiff seeks] to predicate liability [are] `legislative acts.'" Fields, 459 F.3d at 13 (quoting Doe v. McMillan, 412 U.S. 306, 318, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973)). Even if a challenged decision under the CAA is not itself considered a legislative act pursuant to the first step of the Fields analysis, "inquiry into the motivation for [that decision] may require inquiry into legislative acts." Id. at 14. Accordingly, under the second step of the Fields analysis, a court must consider whether the plaintiffs claim should be dismissed under the Clause's "evidentiary privilege," which prevents a Member from having to answer questions "in a deposition, on the witness stand, and so forth . . . regarding legislative activities." Id. (quoting Gravel v. United States, 408 U.S. 606, 616, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972)). In making this determination, the Court should review an affidavit submitted by "an individual 268 eligible to invoke the Speech or Debate Clause recounting facts sufficient to show that the challenged personnel decision was taken because of the plaintiffs performance of conduct protected by the Speech or Debate Clause." Id. at 16. If the claim "does not inquire into legislative motives or question conduct part of or integral to the legislative process, or if the district court determines that the asserted activity is not in fact part of or integral to the legislative process, then the case can go forward." Id. If the court does find that a claim inquires into legislative motives or conduct integral to the legislative process, the Court must apply the evidentiary privilege of the Clause to bar such inquiry.[4]Id. at 16-17. 1. Whether Plaintiff can establish a prima facie claim of retaliation without predicating liability on a legislative act The first step of the Fields framework requires the Court to determine whether Plaintiffs retaliation claim predicates liability on a legislative act. Plaintiff claims she "was demoted from her position as Scheduler in retaliation for her complaints of sexual harassment in the office." Pl.'s Opp'n to Def.'s Mot. to Dismiss at 7. The Court must therefore consider whether Plaintiffs demotion is fairly characterized as a legislative act. Prior to Fields, the D.C. Circuit followed a rule that an Office's personnel decisions were "legislative acts" if the employee's job responsibilities were related to the legislative process. See Browning v. Clerk, United States House of Representatives, 789 F.2d 923, 931 (D.C.Cir.1986). The D.C. Circuit expressly rejected the Browning precedent in Fields. 459 F.3d at 11-13. The Circuit Court held that the Browning rule was "overinclusive" and that "an employee's duties test is too crude a proxy for protected activity." Id. at 11. The Circuit Court identified several personnel decisions that lacked even a tangential nexus to legislative acts, such as the "[f]iring of an aide for falsifying expense reports, or disciplining an assistant for harassing others in the office. . . ." Id. In place of the Browning rule, the court established the two-step framework described above, and held that the relevant immunity inquiry focused on whether the decision at issue was a core legislative act. Id. at 13 (considering whether the actions alleged to form the basis for liability required inquiry into "`how [the Member] spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation'" of the [CAA]) (quoting United States v. Brewster, 408 U.S. 501, 526, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972)). The Circuit Court applied this analysis to the claims brought by Beverly Fields, the Chief of Staff who brought suit against the Office of Eddie Bernice Johnson. The Court explained that Fields "alleges that the Office of Representative Johnson discriminated against her because of her race and gender and retaliated against her when she objected to discriminatory treatment 269 of her co-worker . . . and when she filed a complaint with the Office of Compliance." Id. at 16. The Circuit Court held that these allegations did not seek "to predicate liability on protected conduct." Id. Accordingly, the Circuit Court held that the Speech or Debate Clause did not provide immunity for Field's claims. The same analysis applies in the instant case. Plaintiff has brought a claim for retaliation under the CAA one of the claims asserted by Fields. Plaintiff alleges that she was demoted from her Scheduler position in retaliation for her complaints about the Office's Chief of Staff. That claim in no way requires inquiry into "how the [Congressman] spoke, how he debated, how he voted, or anything he did in the chamber of in committee" to establish a violation of the CAA. See Fields, 459 F.3d at 13 (quoting Brewster, 408 U.S. at 526, 92 S. Ct. 2531). Defendant argues that the Fields decision left open the possibility that some personnel decisions could be considered legislative acts. See Def.'s Mot. to Dismiss and for Summ. J. at 11; Fields, 459 F.3d at 10 (rejecting the holding in Browning and stating that "[w]e agree that some personnel decisions would not qualify") (emphasis added). The Court agrees with Defendant that Fields did not foreclose the possibility that a personnel decision could constitute a legislative act.[5] If this were not the case, the Circuit Court's listing of specific examples of personnel decisions that are not legislative acts would be meaningless (as all personnel decisions would be treated similarly), 459 F.3d at 11, and the Court's choice of words ("some personnel decisions would not qualify" as legislative acts), Id. at 10, would be directly contradicted. Nevertheless, just as in Fields, Plaintiffs retaliation claim predicates liability on conduct that does not constitute core legislative activities. Even if a personnel decision could constitute a legislative act in some instances, the Court does not find on this record that Plaintiff s demotion is such an instance.[6] 2. Whether Plaintiff can prove her claim of retaliation without inquiring into legislative acts or the motivation for performance of legislative acts Step two of the Fields framework requires the Court to consider whether proof of Plaintiff's retaliation claim may require "inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." Brewster, 408 U.S. at 525, 92 S. Ct. 2531. See also Fields, 459 F.3d at 14 ("the fact that Fields and Hanson are able to plead prima facie cases under the [CAA] without violating the Speech or Debate Clause 270 does not mean the Speech or Debate Clause in no way hinders their suits."). If such inquiry is required, the Speech or Debate Clause provides an evidentiary privilege that "may preclude some relevant evidence in suits under the [CAA]." Fields, 459 F.3d at 14. The D.C. Circuit explained the context in which the evidentiary privilege could arise in a discrimination claim brought under the CAA: Liability for discriminatory personnel decisions rests not on the fact that action was taken ("you can't fire me"), nor on the duties of the employee against whom action was taken ("you can't fire the chief of staff'), but on the reason that action was taken ("you can't fire me for that reason"). But what happens when the action was motivated by the employee's participation in the legislative process? * * * Suppose a plaintiff sues a Member's personal office claiming her discharge violated the [CAA]. Suppose further that she is able to make out a prima facie case of discrimination of one form or another. If the employing office produces evidence by affidavit, for example that the personnel decision was made because of the plaintiffs poor performance of conduct that is an integral part of the due functioning of the [legislative] process,' then for the plaintiff to carry her burden of persuasion, she must `demonstrate that the proffered reason was not the true reason for the employment decision.' In many cases, the plaintiff would be unable to do so without `draw[ing] into question' the legislative activities and the motivations for those activities asserted by the affiant matters into which the Speech or Debate Clause prohibit inquiry. 459 F.3d at 15-16 (citations omitted). Plaintiff's retaliation claim operates in the same way as the discrimination claim described by the Circuit Court in Fields: To establish a prima facie case of retaliation, Plaintiff must show that she engaged in protected activity, that her employer took an adverse action, and that there is a causal nexus between the protected activity and the adverse action. Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007). Defendant must then "articulate some legitimate, non-retaliatory reason for the adverse action." Id. at 529. "Once the defendant proffers the requisite explanation, the plaintiff must `prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for retaliation.'" Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). Plaintiff claims that "she was demoted from her position as Scheduler in retaliation for her complaints of sexual harassment in the office." Pl.'s Opp'n to Def.'s Mot. to Dismiss at 7. The Congressman claims, by affidavit, that Plaintiff "was interfering with [his] ability to attend committee and subcommittee meetings in a timely manner" based on errors she had made in the Congressman's schedule in April and early May 2006.[7] Def.'s Mot. to Dismiss and for Summ. J. Ex. A ¶¶ 9, 12. Specifically, the Congressman asserts that the Scheduler in his Office must not only "administratively note [his] schedule on a calendar," but also "arrange [his] schedule, speak with other offices in coordinating [his] schedule, and exercise independent 271 judgment regarding [his] attendance at often-conflicting meetings and events, including legislative meetings, committee meetings, and votes." Id. 4. In April and early May 2006, the Congressman asserts that he was directly impacted by several scheduling errors that [he] attributed to [Plaintiff]. These included my being scheduled to attend committee meetings at the wrong starting times and/or with the wrong location identified, my being scheduled to leave a Committee meeting that was underway to attend another meeting, only to arrive at the location to find no one present, and my being scheduled at multiple locations at the same time. Id. ¶ 9. The Congressman states that the timing of these errors was especially significant because the Appropriations committee and its subcommittees were engaged in the legislative process called a "mark-up," where the committee and subcommittees debate, revise, and vote on the appropriations bills to fund the federal government for the next fiscal year. Id. ¶ 8 ("Mark-up is often extremely time-sensitive; votes occur frequently and often occur relatively unexpectedly and quickly."). The Congressman states that he was worried that Plaintiff, during the mark-up period, "would make similar errors going forward and I might miss important votes and fail to ensure that key provisions of the appropriations legislation, such as earmarks, were maintained. My concerns about [Plaintiff's] performance were inextricably intertwined with my concerns about their effect on my ability to perform my legislative duties." Id. ¶ 10. The Supreme Court has held that activities related to House committees may be considered legislative. See Brewster, 408 U.S. at 526, 92 S. Ct. 2531 (acknowledging legislative acts as occurring "in the chamber or in committee"). The activities implicated by the errors allegedly made by Plaintiff missed committee hearings and votes, or the motivations for missing hearings or votes appear to be the type of activities that are integral to the legislative process. See United States v. Helstoski, 442 U.S. 477, 489, 99 S. Ct. 2432, 61 L. Ed. 2d 12 (1979) ("The Clause protects `against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.' It `precludes any showing of how [a legislator] acted, voted, or decided.'") (citations omitted). In order for Plaintiff to prevail on her claim of retaliation, she will necessarily have to show that the Congressman's explanation for Plaintiff's demotion is pretextual, and refute the Congressman's representations that he failed to attend all or part of one or more committee meetings on account of Plaintiffs errors, and explore the reasons behind why the Congressman failed to attend such meetings. Although Plaintiff argues that her "case would not require impermissibly questioning anything that Defendant may have done during the course of an actual vote or hearing," Opp'n to Pl.'s Mot. to Dismiss at 14, whether the Congressman missed or attended an actual vote or hearing, and the reasons why he may have attended or missed an actual vote or hearing, are inquiries that impermissibly relate to the legislative process. Accordingly, the Court finds that Defendant has asserted, through the Congressman's affidavit, legitimate, non-retaliatory reasons for Plaintiffs demotion that are protected from inquiry by the Speech or Debate Clause. 3. Whether Plaintiffs retaliation claim should be dismissed because the evidentiary privilege prevents Plaintiff from proving an element of her claim The D.C. Circuit did not explain how the evidentiary privilege applied to 272 the claims brought by the plaintiffs in Fields, choosing to leave that issue for the district courts to consider. Fields, 459 F.3d at 16-17. Judge Randolph, writing for a four-judge plurality, suggested that the evidentiary privilege would, in most cases, result in dismissal of a plaintiffs CAA claim because it would leave the plaintiff unable to rebut the non-discriminatory reasons advanced by the defendant. Id. at 16. The plurality expressly found that it "need not decide today whether a case in which the plaintiff uses evidence unrelated to legislative acts such as direct evidence of discrimination or evidence that at the time of the discharge the Senator offered a different reasons for the employment action requires more questioning of defendant's legislative motives that the speech or Debate Clause allows." Id. at 16-17. Two of the concurring opinions likewise left open the question of how the evidentiary privilege should be applied to a plaintiffs claims. See Id. at 18 (Rogers, J., concurring); id. (Tatel, J., concurring). Accordingly, this Court must determine whether application of the evidentiary privilege should result in dismissal of Plaintiffs retaliation claim. In the present matter, the Court need not provide a bright-line answer to the question left open by the Circuit Court. Plaintiff has not argued in her submissions that there exists any evidence contrary and unrelated to the Congressman's stated reasons for Plaintiffs demotion that would not require an inquiry into the legislative acts described above. Nor has the Plaintiff suggested that additional discovery would reveal such evidence. Instead, Plaintiff only argues that the "Speech or Debate Clause's narrow confines do not mandate its application to this case, either as a facial challenge or as a matter of evidentiary privilege." Pl.'s Opp'n to Def.'s Mot. to Dismiss at 14. Because this statement and Plaintiffs supporting arguments provide no assertion that independent evidence related to Plaintiffs demotion exists or that it may be uncovered with further discovery, and because the evidentiary privilege of the Clause prevents Plaintiff from refuting the Congressman's stated reasons for her demotion, the Court shall dismiss Count III of Plaintiffs Complaint. B. Summary Judgment as to Counts I and IV Defendant moved for Summary Judgment on Counts I and IV of Plaintiff s Complaint following Plaintiffs deposition but prior to the close of discovery. Although Defendant acknowledges that the Parties had not completed discovery, see Def.'s Mot. to Dismiss and for Summ. J. at 28 n. 26, Defendant argues that Plaintiffs deposition testimony and her inability to recall facts underlying the allegations in her Complaint demonstrate that her claims of sexual harassment and constructive discharge (Counts I and IV, respectively) must fail, and that no amount of further discovery would allow Plaintiff to prove the elements of these claims. Id. Summary judgment "ordinarily `is proper only, after the plaintiff has been given adequate time for discovery.'" Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997) (quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C.Cir.1988)). Under Federal Rule of Civil Procedure 56(f), a court "may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion." Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C.Cir.1989); 273 Londrigan v. Fed. Bureau of Investigation, 670, F.2d 1164, 1175 (D.C.Cir.1981). "[T]he purpose of Rule 56(f) is to prevent `railroading' the non-moving party through a premature motion for summary judgment before the non-moving party has had the opportunity to make full discovery." Dickens v. Whole Foods Market Group, Inc., Civ. No. 01-1054, 2003 WL 21486821, at 2 n. 5 (D.D.C. Mar. 18, 2003) (citing Celotex Corp., 477 U.S. at 326, 106 S. Ct. 2548, 91 L. Ed. 2d 265). The district court has discretion in determining whether it should permit additional discovery before the motion for summary judgment is resolved. Stella v. Mineta, 284 F.3d 135, 147 (D.C.Cir.2002). A party seeking the protection of Rule 56(f) "must state by affidavit the reasons why he is unable to present the necessary opposing material." Cloverleaf Standardbred Owners Ass'n, Inc. v. Nat'l Bank of Washington, 699 F.2d 1274, 1278 n. 6 (D.C.Cir.1983); but see First Chicago Int'l, 836 F.2d at 1380 (holding that filing an affidavit is not essential to preserve Rule 56(f) contention as long as the district court was alerted to the need for further discovery). In this case, Plaintiff has submitted a Declaration with her Summary Judgment Opposition, and she specifically requests Rule 56(f) relief. See Aug. 24, 2007 Aff. of Elizabeth B. Scott (hereinafter "Pl.'s Decl."). The party seeking additional discovery bears the burden of identifying the facts to be discovered that would create a triable issue and the reasons why the party cannot produce those facts in opposition to the motion. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 248 n. 8 (D.C.Cir.1999). It must also show a reasonable basis to suggest that discovery might reveal triable issues of fact. Carpenter v. Fed. Nat'l Mortgage Ass'n, 174 F.3d 231, 237 (D.C.Cir.1999). In the instant case, Plaintiff argues that additional discovery "would likely refresh [her] memory regarding [the Chief of Staffs] behavior," and identifies four such areas: (1) a Day Planner that Plaintiff used while in the Office that she has not received in discovery; (2) the statements of four persons with whom Plaintiff discussed the Chief of Staffs conduct; (3) the statements of the Congressman and the Chief of Staff; and (4) the results of an investigation undertaken by Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, a law firm that interviewed persons in the Office regarding Plaintiff's claims and the Chief of Staffs behavior.[8]See Pl.'s Decl. ¶¶ 3-7. According to Plaintiff, this additional discovery is necessary to prove her claims. See Pl.'s Opp'n to Def.'s Mot. to Dismiss at 3-6. Based on Plaintiff's Declaration and the fact that Plaintiff has had an insufficient amount of time to conduct discovery prior to imposition of the stay in this case, the Court finds that Plaintiff is entitled to discovery pursuant to Fed.R.Civ.P. 56(f).[9] The Court shall deny Defendant's Motion for Summary Judgment without prejudice, lift the stay in this case, and allow discovery to resume. Consistent with this Opinion, Plaintiff shall be precluded from *274 seeking discovery or otherwise inquiring about the Congressman's reasons for removing Plaintiff as Scheduler. The proper focus of the remaining discovery for Counts I and IV appears to be the conduct that other individuals may have observed at times relevant to the Complaint, and what Plaintiff may have told others about such conduct. C. Defendant's Additional Claims on Reply One final issue remains. In Defendant's Reply to Plaintiffs Opposition, Defendant for the first time argues that the Speech or Debate Clause should apply to Counts I and IV of Plaintiffs Complaint.[10]See [31] Def.'s Reply to Pl.'s Opp'n at 14. Defendant did not make these claims in its original Motions where it had limited its assertion of the Speech or Debate Clause to Plaintiffs retaliation claim (Count III). Defendant's new claims are not properly before the Court and have not been fully briefed by the Parties. It is a well-settled prudential doctrine that courts generally will not entertain new arguments first raised in a reply brief. See Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C.Cir.1992); Golden Pacific Bancorp v. Clarke, 837 F.2d 509, 513 (D.C.Cir.1988). Notwithstanding the improper posture of Defendant's new claims, the Circuit Court has held that the Speech or Debate Clause provides a "jurisdictional bar" to suit when a Plaintiff predicates liability on a legislative act. Fields, 459 F.3d at 13 (describing the first step of the Fields framework described above). The Court finds, however, that Plaintiffs sexual harassment claims and constructive discharge claims are not predicated on a legislative act for the same reasons set forth in section II.A.1, supra. The Court expressly declines to consider step two of the Fields framework (the evidentiary privilege) because the present record is insufficiently developed with respect to whether the Speech or Debate clause implicates Plaintiffs sexual harassment and constructive discharge claims (either in whole or in part).[11] If it appears, following discovery, that these claims implicate the Speech or Debate Clause, Defendant may so argue at that time. III. CONCLUSION For the reasons set forth above, the Court shall GRANT Defendant's [27] Motion to Dismiss Count III and DENY WITHOUT PREJUDICE Defendant's [26] Motion for Summary Judgment on Counts I and IV. Plaintiffs retaliation claim (Count III of Plaintiffs Complaint) shall be dismissed. The discovery stay shall be lifted, and Plaintiff shall be precluded from seeking discovery or otherwise inquiring about the Congressman's reasons for removing Plaintiff as Scheduler. The proper focus of the remaining discovery for Counts I and IV appears to be the conduct that other individuals may have observed at times relevant to the Complaint, and what Plaintiff may have told others about such conduct. The Parties shall be prepared to discuss a new discovery schedule at the status hearing scheduled for December 4, 2007, before this Court. NOTES [1] Defendant's Motions concern only three of the five Counts asserted in Plaintiff's Complaint. The Court shall provide a factual background only as it relates to the three Counts at issue. [2] The direct appeal was taken pursuant to 2 U.S.C. § 412, part of the CAA. The underlying D.C. Circuit decision, Fields v. Office of Eddie Bernice Johnson, was a consolidation of two cases. Because Fields did not appeal the D.C. Circuit decision, the Supreme Court styled the case name after the second of the consolidated cases, Office of Senator Mark Dayton v. Hanson. [3] The Court did not independently verify this number during its review of the deposition transcript. Plaintiff did not, in any event, refute this point in its submissions to the Court. [4] As described more fully below, the Circuit Court in Fields did not provide a majority opinion discussing the effect of the evidentiary privilege. Judge Randolph's four-judge plurality opinion suggested that the "action most likely must be dismissed," although it did not reach the issue of whether such a case could move forward if the plaintiff seeks to use evidence unrelated to the legislative acts (such as direct evidence of discrimination or evidence that at the time of discharge the Member offered a different reason for the personnel decision). Fields, 459 F.3d at 16. The plurality and concurring opinions all agreed that "the question of what precisely the Clause precludes is best resolved on a case-by-case basis." Id. at 18 (Tatel, J., concurring). [5] The Court notes that the Fields decision did not provide any examples of personnel decisions that a court could properly characterize as a legislative act. Perhaps one such example is provided in Bastien v. Office of Senator Ben Nighthorse Campbell, where the Tenth Circuit implies that a committee resolution directing a discriminatory action against" an employee may be considered a legislative act. 390 F.3d 1301, 1315 (10th Cir.2004). [6] Defendant also argues that Browning merely removed the presumption that a personnel decision was a legislative act depending on an employee's job responsibilities, but it did not remove the employee's responsibilities as a consideration in the analysis. See [31] Def.'s Reply to Pl.'s Opp'n at 5. Even assuming arguendo that this were true, the plaintiff in Fields was the Chief of Staff of Representative Johnson's office, and the parties agreed that the plaintiff was "deeply involved in a wide array of Representative Johnson's legislative work." Fields, 459 F.3d at 5. If Field's job responsibilities were considered by the Circuit Court but deemed insufficient to implicate the Speech or Debate Clause, so too must Plaintiff's Scheduling responsibilities in the instant case. [7] The Congressman specifically refers to his affidavit as a Fields affidavit, and indicates that it is submitted solely for the purpose of asserting the protections of the Speech or Debate Clause. [8] The Court expresses no view in this Opinion as to whether Plaintiff is entitled to this discovery or as to other discovery-related matters. The Court does note, however, that any subjects learned during settlement discussions, see [32] Def.'s Reply to Pl.s' Opp'n at 18, would not generally be a proper focus of discovery. [9] Defendant asks the Court to strike Plaintiff's Declaration and find that the statements included therein are inconsistent with those Plaintiff made at her deposition. See [32] Def.'s Reply to Pl.'s Opp'n at 3. Whether Plaintiff has made (or will make) statements that conflict with her deposition testimony is an issue that is more appropriately resolved after discovery has been completed and after the Parties have properly briefed the issue. [10] Defendant's argument is that `Plaintiff asserts that the circumstances of her removal as Scheduler are relevant not only to Count III (the retaliation claim), but are relevant to her ability to establish Counts I and IV." [31] Def.'s Reply to Pl.'s Opp'n at 14. [11] For example, it is unclear what evidence Plaintiff will ultimately want to use to prove these claims.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519657/	522 F. Supp. 544 (1981) AMERICAN FUTURE SYSTEMS, INC., et al., Plaintiffs, v. The PENNSYLVANIA STATE UNIVERSITY, et al., Defendants. Civ. No. 81-0171. United States District Court, M. D. Pennsylvania. September 16, 1981. Judgment Corrected September 17, 1981. As Amended October 13, 1981. 545 546 Henry T. Reath, George E. Pierce, Jr., Duane, Morris & Heckscher, Philadelphia, Pa., for plaintiffs. Delbert J. McQuaide, R. Mark Faulkner, McQuaide, Blasko, Schwartz, Fleming & Faulkner, State College, Pa., for defendants. OPINION MUIR, District Judge. Plaintiffs filed this action alleging violations of their constitutional rights and of rights granted by Pennsylvania law on February 5, 1981. Jurisdiction is alleged to arise under 28 U.S.C. §§ 1331 and 1343 and the doctrine of pendent jurisdiction. Also on February 5, 1981, Plaintiffs filed a motion for a preliminary injunction which was denied by this Court in American Future Systems v. Pennsylvania State University, 510 F. Supp. 983 (M.D.Pa.1981). On July 17, 1981, Defendants filed a motion for summary judgment and supporting brief. On August 24, 1981, Plaintiffs responded, and on August 31, 1981, Defendants filed a reply. For the reasons set forth below, Defendants' motion for summary judgment will be granted. This case is the second one before the Court involving policies of Pennsylvania State University (Penn State) relating to commercial activities in its dormitories. In the first lawsuit, judgment was granted in favor of Penn State upholding its regulations against an attack that they violated American Future Systems' (AFS) First Amendment rights. American Future Systems, Inc. v. Pennsylvania State University, 464 F. Supp. 1252 (M.D.Pa.1979), aff'd 618 F.2d 252 (3d Cir. 1980) ("American Future Systems I"). AFS is a corporation whose principal business is the sale of cookware, china, crystal, and silverware through demonstrations of its merchandise at colleges throughout the United States. AFS seeks by this action to be permitted to present sales demonstrations at the invitation of individual students in the common areas and dormitory rooms within the residence halls of Penn State, to disseminate commercial information to groups of students through sales demonstrations at the invitation of individual host students in their individual dormitory rooms, and to consummate sales to individual students in the student hosts' rooms and residence halls of Penn State. Plaintiffs Wingert and Brubaker are Penn State students who formerly resided in Penn State residence halls. Wingert withdrew as a student at Penn State in February 1981 and is no longer enrolled. Brubaker, while still enrolled as a student, no longer 547 resides in a Penn State residence hall. Wingert and Brubaker seek relief permitting them to invite AFS to common areas and their individual dormitory rooms and residence halls, to conduct in their rooms and in common areas of residence halls, sales demonstrations to groups of invited students and to invite AFS to their dormitory rooms for purposes of consummating sales of goods to other students following the demonstrations. Plaintiffs DelValle, Varsics, Habacher and Spiller are current Penn State students who do not reside in residence halls. DelValle, Varsics, Habacher and Spiller seek an order permitting them to attend and participate in AFS group demonstrations in common areas and dormitory rooms and to consummate sales from AFS in those rooms. As this Court already held in its denial of Plaintiffs' motion for a preliminary injunction, the policy of Penn State during the time that American Future Systems I was litigated and now is that (1) AFS may conduct group demonstrations in specified common areas of each residence hall; (2) following those demonstrations a student may invite an AFS representative to the student's room to purchase AFS goods; (3) AFS is free to solicit invitations to individual students' rooms at the group demonstrations or by telephone or mail; (4) AFS is not permitted to conduct group demonstrations in an individual dormitory room; (5) AFS is not permitted to consummate sales in dormitory rooms to a purchaser other than the occupant of the room; (6) AFS is not permitted to conduct group solicitations of sales in the common areas of residence halls; (7) AFS is not permitted to consummate commercial transactions in the common areas of residence halls. American Future Systems v. Pennsylvania State University, 510 F. Supp. 983, 985 (M.D.Pa.1981). It is Plaintiffs' position that under the ruling of the Court of Appeals in American Future Systems I they are entitled to the relief sought in this action. Defendants are of the view that their policies relating to commercial activities in Penn State's dormitories are consistent with the Court of Appeals' opinion in American Future Systems I, and that Plaintiffs are not entitled to relief. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions in the record, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c) of the Federal Rules of Civil Procedure. Because the bases for granting summary judgment are somewhat different as to Plaintiff AFS, to Plaintiffs Wingert and Brubaker, and to Plaintiffs DelValle, Varsics, Habacher and Spiller, AFS and each group of individual Plaintiffs will be discussed separately. I. AFS. AFS's primary contention is that the decision of the Court of Appeals in American Future Systems I granted AFS certain rights that Penn State has abridged. To the contrary, the Court of Appeals' opinion contains no declaration of AFS's rights, and in that opinion the Court concluded that Penn State's policies governing commercial activity was wholly consistent with AFS's First and Fourteenth amendment rights. The Court of Appeals recognized that a total suppression of AFS's commercial speech would probably violate AFS's constitutional rights. American Future Systems I, 618 F.2d at 258. In holding that Penn State's distinction between non-commercial and commercial speech was valid, the Court of Appeals noted that Penn State had only restricted, rather than suppressed, speech. "[AFS] sales representatives are allowed into the residence halls to present demonstrations to groups of students, [but] they cannot consummate sales at these gatherings. Even that restriction is removed if the sales representative is invited to the hall by an individual student who decides to purchase the merchandise marketed by AFS." 618 F.2d at 258. There is a dispute as to whether the Court of Appeals' decision in American Future Systems I actually vests in AFS the right to set up group demonstrations of its products in the Penn State residence halls. However, inasmuch 548 as Penn State policies permit such group demonstrations, this Court need not reach that question. The issues now before the Court are (1) whether Penn State may limit AFS to presentations in common areas, as opposed to private rooms, and may limit AFS's actual solicitation to private rooms and not permit such solicitation in common areas; and (2) whether AFS's proposed presentation does in fact constitute solicitation, in whole or in part. Penn State's policy governing commercial activity in its residence halls has remained unchanged since AFS made its initial attempts to conduct demonstrations of its products in 1977. Specifically, in effect at the time of the American Future Systems I litigation was Penn State's policy that AFS could present demonstrations, but not solicitations of sales in the common areas of residence halls, and that AFS is free to consummate commercial transactions (i. e. solicitation) in student's rooms, but not in common areas. See American Future Systems I, 464 F. Supp. 1252, 1258 (¶ 59); American Future Systems v. Pennsylvania State University, 510 F. Supp. 983, 985 (M.D. Pa.1981). The record shows that AFS was aware of this policy at the time that it filed the American Future Systems I action. See American Future Systems I, 464 F.Supp. at 1258 (¶ 59). AFS's attempt to relitigate the constitutionality of Penn State's policies regarding commercial activities in dormitories is barred by the doctrine of res judicata. The doctrine provides that a party who has suffered an adverse judgment may not, in subsequent litigation against the same party, seek to relitigate any issue that was or could have been determined in the first action. See Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 973-74, 59 L. Ed. 2d 210 (1979). The purpose of this doctrine is to ensure finality in the adjudication of disputes and to provide a conclusive resolution not only of matters that were actually considered but also of all of those which could have been considered. Cramer v. General Telephone & Electronics Corp., 582 F.2d 259, 266 (3d Cir. 1978), cert. denied, 439 U.S. 1129, 99 S. Ct. 1048, 59 L. Ed. 2d 90 (1979). In order for res judicata to apply, three elements must be present: (1) there must be an identity of parties; (2) there must be in existence a valid, final judgment on the merits by a Court of competent jurisdiction; and (3) the second action must concern the same subject matter or cause of action as the prior suit. Sworob v. Harris, 451 F. Supp. 96, 99-100 (E.D.Pa.) aff'd 578 F.2d 1376 (3d Cir. 1978) (memorandum). There can be no dispute as to the first two requirements. Here, AFS and the same Penn State defendants have been involved in both actions. Further, there is a final, valid judgment upholding Penn State's policy governing commercial activities in dormitories. As to the third requirement, the second action may be said to involve the same cause of action if liability is sought to be imposed on a different theory but based on the same "liability creating conduct" of the Defendant which gave rise to the first action. Coggins v. Carpenter, 468 F. Supp. 270, 280 (E.D.Pa.1979), citing Williamson v. Columbia Gas & Electric Corp., 186 F.2d 464 (3d Cir. 1950), cert. denied, 341 U.S. 921, 71 S. Ct. 743, 95 L. Ed. 1355 (1951). Based on the allegations of Plaintiffs' complaint, the exhibits attached thereto, and affidavits submitted in this matter, the Court concludes that AFS is complaining about the same conduct of which it complained in American Future Systems I, namely Penn State's regulations limiting access by AFS to the university's dormitories. The Court also concludes that AFS had in that action opportunity to present to the Court and to the Court of Appeals any claims it might have had as to the precise contours of the permissible scope of group demonstrations as well as any other matters relating to any other constitutional rights that may have been adversely affected by Penn State's policies. Since the Court of Appeals has already upheld the validity of Penn State's policies with respect to commercial activities within residence halls, and since AFS had a full and fair opportunity to litigate the validity of that policy, or any aspect thereof, in the first action, res judicata operates 549 to preclude AFS's challenge to that policy in this action. Therefore, summary judgment will be granted in favor of the Defendants as to AFS's claim that Penn State's policy with respect to commercial solicitation and activity in the dormitories violates AFS's First and Fourteenth Amendment rights. AFS's second claim is that Penn State's position that it may censor the substance of AFS's demonstrations violates AFS's constitutional rights. Penn State contends that certain portions of the AFS demonstration involve the solicitation of sales rather than educational or informational material within the normal meaning of "demonstration." Penn State claims that these provisions which involve price, credit and guarantee terms, are properly considered commercial rather than educational in nature, and are therefore properly restricted to individual solicitation in private rooms and may be excluded from the demonstrations in common areas. (Defendants' Brief in Support of Motion for Summary Judgment at pp. 11-12.) AFS, in response, claims that if it were to present its demonstrations in the manner required by the University, it might appear to its listeners to be engaging in sharp business practices. AFS claims that if it is allowed to demonstrate and display its products, but is not allowed to give information regarding prices, guarantees, exchange policies and specially designed credit terms to fit students' budgets, its sales representatives' credibility as legitimate and honest people would be undermined. (Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at pp. 8-9). The Court of Appeals' decision in American Future Systems I specifically upheld Penn State's regulations to the extent that they rested upon a distinction between commercial and non-commercial speech. Addressing the question of solicitation and consummation of sales in common areas, the Court of Appeals first noted that Penn State had advanced reasonable objectives to support its ban on group commercial activity in its residence halls. Finding that Penn State had not acted in an arbitrary, capricious, or invidious manner in distinguishing between commercial and non-commercial speech (i. e. solicitations as opposed to demonstrations), the Court concluded that Penn State's policies do not violate the First Amendment. American Future Systems I, 618 F.2d at 259. Thus, AFS's position that the Court of Appeals did not anticipate or recognize distinctions between educational programs and commercial solicitation (Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at p. 8) is clearly erroneous. In American Future Systems I, this Court and the Court of Appeals were not faced with the question of whether particular aspects of AFS's presentations were educational or commercial. Thus, this aspect of AFS's claim is not barred by res judicata. AFS's proposed presentation is evidenced by the cue cards that are attached to the complaint. The parties have agreed in their statement of material facts that the cue cards in Exhibit E of the complaint constitute substantially all of AFS's presentation. Cards 1 through 23 are clearly educational and instructional in nature, and it is permissible to convey this information at AFS's group demonstrations. Cards 24 through 31 relate to guarantee and payment plans offered to the students. These cards constitute solicitation of sales, and Penn State may constitutionally prohibit AFS from presenting this information as a part of its demonstrations. The material contained in cards 32 through 36 is informational and permissible. The material in the first paragraph of card 37 deals with the price of AFS's goods, and constitutes impermissible solicitation. The material contained in the remainder of card 37 and cards 38 through 51 is instructional and permissible. The material contained in cards 52 through 65, as well as those portions of cards 66 and 67 that involve distribution of contracts for purchase of AFS goods, involves impermissible solicitation. The only portions of AFS's demonstration that are at issue in this segment of the lawsuit are those which the Court has found 550 to be impermissible pursuant to the Court of Appeals's ruling in American Future Systems I. Since there is no issue as to any material facts, summary judgment is appropriate. The Court will therefore enter summary judgment in favor of Defendants as to this issue. II. Plaintiffs Brubaker and Wingert. Defendants first assert that the claims of Brubaker and Wingert are moot because Wingert has withdrawn from the university and Brubaker has not renewed his contract for a university dormitory room during the upcoming academic year. Plaintiffs, in an apparent attempt to solve the "mootness" problem, on August 31, 1981, filed a motion to join an additional Plaintiff. The proposed Plaintiff, Kevin Graves, is a present Penn State student who resides in a Penn State residence hall and who has notified Penn State of his intention to hold an AFS demonstration in his dormitory room on September 14, 1981. (Affidavit of Kevin Graves at pp. 1-2). Graves has not, to the Court's knowledge, been denied permission to hold the AFS demonstration in his dormitory room. (Memorandum of Law in Support of Plaintiffs' Motion to Join Kevin Graves as an Additional Plaintiff at p. 2). Since Graves has not yet been denied permission to hold the AFS demonstration, the Court doubts whether his dispute with Penn State is sufficiently ripe for the Court to adjudicate his claim. However, the Court will not dismiss Brubaker's and Wingert's claims on mootness grounds. Graves's claims will not materially alter the facts of this dispute and the Court will today dismiss the entire lawsuit. Therefore, the Court will consider the facts in the light most favorable to Graves and will grant Plaintiffs' motion that Graves be added as an additional Plaintiff. Graves's claims will be treated as identical to those of Brubaker and Wingert. The definition of mootness is well settled: A case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome of the lawsuit. Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969). Despite this definition, a claim is not moot even though the alleged violation is not presently in force or continuing, where the alleged violation or challenged conduct is capable of repetition, yet evading review. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310 (1911); Winsett v. McGinnis, 617 F.2d 996, 1003 (3d Cir. 1980); cert. denied, sub nom., Anderson v. Winsett, 449 U.S. 1093, 101 S. Ct. 891, 66 L. Ed. 2d 822 (1981). Where individual Plaintiffs are suing, and there is no class action, the capable of repetition, yet evading review doctrine is limited to the situation where (1) a challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subject to the same action again. Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975), citing Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975). As defendants point out in their reply brief, the "capable of repetition yet evading review" doctrine is inapplicable if there is no reasonable expectation that the same Plaintiffs will be subject to the same policies again. (Defendants' Reply Brief at p. 5). In order for the Court to grant summary judgment in favor of Defendants as to Plaintiffs Brubaker's and Wingert's claims, there must be no material issue of fact in dispute. As to Brubaker, Defendants claim there is no possibility that he will again be subject to Penn State's policies because Brubaker has not applied for dormitory space in 1981 and all rooms have previously been assigned to students making timely applications. Thus, Defendants conclude Brubaker will no longer be able to reside in a dormitory room, so his claim is moot. However, Plaintiffs deny that the dormitories are filled for the 1981-82 school year, so a material issue of fact exists as to whether Brubaker again will be able to live in a Penn State residence hall. Thus, a question remains as to whether Brubaker again will be subject to Penn State's policies regarding commercial transactions in 551 residence halls. Therefore, at least at this stage of the litigation, summary judgment may not be granted in Defendants' favor as to Brubaker's claims on mootness grounds. As to Plaintiff Wingert, Defendants claim that since he is no longer a student at Penn State and he has not filed an application for readmission to the school, Wingert too will no longer be residing in a Penn State dormitory room, so his claim is not capable of repetition. Again, there is a material issue of fact in dispute. Wingert, by affidavit, states that he intends to re-enroll in Penn State as soon as possible and intends to live in the Penn State residence halls. Thus, as with Brubaker, Wingert's claims cannot be disposed of in Defendants' favor on mootness grounds, at least at this stage of the litigation. Defendants are entitled to summary judgment as to Brubaker and Wingert on other grounds. Brubaker and Wingert seek relief permitting them to invite AFS representatives to common areas in the individual dormitory rooms, to conduct sales demonstrations to groups of invited students in their rooms and in common areas of residence halls, and to invite AFS personnel to their dormitory rooms for the purpose of consummating sales of goods to other students following the demonstrations. Brubaker and Wingert were not parties to American Future Systems I, and are not bound by the doctrine of res judicata by the decision in that case. However, American Future Systems I constitutes binding legal precedent insofar as the legal issues involved are concerned. This Court in American Future Systems I did not address the question of First Amendment rights of Penn State students who are desirous of receiving information about the products which AFS sells and concluded that AFS did not have standing to assert the rights of those students. American Future Systems I, 464 F.Supp. at 1259. AFS again raised the claim that the First Amendment rights of Penn State students were being violated by Penn State's policy with regard to commercial activities within dormitories on its appeal in American Future Systems I. The Court of Appeals, addressing that claim, stated that "[t]he analysis contained in the text [of American Future Systems I] concerning the legitimacy of the restriction on AFS group sales in the residence halls applies as well to students who desire to purchase AFS products at group meetings. Also, we reiterate that the Penn State policy does allow an individual student to invite a sales representative into his or her room for the purpose of individually purchasing goods." American Future Systems I, 618 F.2d at 257, n. 16. To the extent that Brubaker and Wingert base their First Amendment claims on the right to conduct the same types of demonstrations and sales that AFS seeks to conduct, they stand in no different position than AFS itself did in American Future Systems I. Indeed, Plaintiffs are in agreement with this position, stating that the student Plaintiffs' commercial free speech rights as listeners are reciprocal to AFS's rights, and American Future Systems I controls. (Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at p.13.) Since the Court of Appeals in American Future Systems I upheld the validity of Penn State's policy with regard to commercial activities in dormitories, and since Brubaker and Wingert stand on the same footing as did AFS, Penn State's policies do not violate Brubaker's and Wingert's First Amendment rights of commercial speech and Defendants will be granted summary judgment on this issue. Brubaker and Wingert also assert that Penn State's regulations unconstitutionally inhibit their right of freedom of association arising under the First Amendment. Brubaker and Wingert claim that they have a fundamental right to associate themselves with one another and with AFS representatives in the setting of a group demonstration of AFS merchandise where all of them have the opportunity to hear and exchange information and views relating to AFS products, the effectiveness and fairness of the presentation, relevant price information, and also to consummate sales, if anyone so chooses. (Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at pp. 17-18). Brubaker and 552 Wingert claim that Penn State's regulations infringe upon those associational rights. Brubaker and Wingert also claim that since the private dormitory room serves as a student's "home away from home," and the rooms are essentially equivalent to the "interior of a private home," the state lacks the power to control legal, nondestructive, freely formed associations within such rooms. (Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at p. 19.) Plaintiffs conclude that since Penn State has failed to demonstrate a compelling state interest to sustain enforcement of its regulation on commercial activities in the dormitories, Penn State's regulations must fall. While Plaintiffs make the argument that their associational rights stand on some different footing than their right as recipients of commercial speech, the Court is unpersuaded by this distinction. Indeed, as set forth in the Complaint, these associational rights are indistinguishable from the rights sought with respect to making group demonstrations and sales in dormitory rooms. In Count III of the Complaint, Plaintiffs list in broadside fashion their rights that have allegedly been violated: "[D]efendants have deprived said Plaintiffs of their rights of freedom of speech, privacy, and association under the constitution of the United States." Certainly, the primary purpose of the demonstrations is to encourage the attendees at the shows to purchase merchandise. See American Future Systems I, 464 F.Supp. at 1258 (¶ 58). The Court finds unpersuasive Plaintiffs' argument that since the Court of Appeals stated that Penn State had only a "legitimate interest" in continued enforcement of its regulations and not a "compelling interest" Brubaker's and Wingert's associational rights have been violated. (Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at p. 20.) Where political-type relationships are impinged upon by regulation of the right to association, such regulation must be supported by a compelling state interest. E. g. NAACP v. Alabama, 357 U.S. 449, 460, 78 S. Ct. 1163, 1170-71, 2 L. Ed. 2d 1488 (1958). (Whether the beliefs sought to be advanced are political, religious, economic or cultural is immaterial). As is the case with commercial speech, commercial associational rights, even those which are economically motivated, are afforded some protection under the First Amendment. E. g. International Union v. National Right to Work Legal Defense & Education Foundation, 590 F.2d 1139, 1148 (D.C.Cir.1978). The Plaintiffs cite no authority for the proposition that commercial associational rights such as those which are at issue in this case are on equal footing with political associational rights. Quite to the contrary, the relationship between political and commercial associational rights is analogous to the relationship between political and commercial speech rights. As the Supreme Court held in Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-56, 98 S. Ct. 1912, 1918, 56 L. Ed. 2d 444 (1978), commercial and political activities must be treated differently. We have not discharged the "common sense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.... To require a parity of constitutional protection for commercial and non-commercial speech alike would invite dilution, simply by a levelling process, of the force of the [First] Amendment's guarantees with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of non-commercial expression. In Ohralik, the Court expressly held that commercial associational rights, while entitled to some constitutional protection, are subject to regulation in furtherance of important state interests. 436 U.S. at 458-59, 98 S.Ct. at 1919-20. See Central Hudson Gas & Electric Corp. v. Public Service Commission 553 of New York, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). The Court of Appeals has already held in American Future Systems I that legitimate and important interests of Penn State are furthered by its policy of governing commercial activity in the dormitories. Penn State asserts that AFS group sales significantly affect the primary activities of college dormitories. Penn State argues that its residence halls are exclusively dedicated to providing a living environment which is conducive to activities associated with being a student and succeeding academically and that AFS's activity within the residence halls will disrupt the proper study atmosphere and privacy of students. These interests are important enough to sustain Penn State's policy as against a challenge based on the right of association. American Future Systems I, 618 F.2d at 256-57. Moreover, the Court fails to see how the restrictions imposed on Brubaker and Wingert infringe in any material way on the right to associate. As indicated above, Brubaker and Wingert may engage in sales demonstrations in common areas, and may consummate sales in the rooms of people purchasing the products. Brubaker and Wingert are of course free to conduct more extensive commercial activities at locations other than the dormitory halls of Penn State. Given the close nexus between associational freedoms and freedom of speech, NAACP v. Alabama, 357 U.S. 449, 460, 78 S. Ct. 1163, 1170-71, 2 L. Ed. 2d 1488 (1958), Brubaker and Wingert cannot demonstrate that the policy governing commercial activity violates their associational rights. The Defendants will therefore be granted summary judgment on this issue. Brubaker and Wingert also claim that Penn State's regulations impermissibly infringe on their constitutional right of privacy, which they assert requires that they be permitted to conduct the commercial activity they desire in the dormitory rooms. Brubaker and Wingert state that they seek to establish their rights to be let alone in their choice of whom they may invite to their rooms, or whom they choose to visit, in a lawful, nondisruptive manner. Brubaker and Wingert argue that because the privacy and associational rights are so closely intertwined in this case, if the regulations cannot withstand scrutiny with respect to associational claims, the regulations must fall on privacy grounds for the same reasons. (Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment at pp. 23-24.) The Court agrees with these Plaintiffs' statement that privacy and associational rights should be treated equally in this case, but concludes that neither associational nor privacy rights have been violated. See Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-56, 98 S. Ct. 1912, 1918, 56 L. Ed. 2d 444 (1978). While the genesis of privacy rights is somewhat obscure, Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), a fundamental right to be free from unwanted governmental intrusions is implicit in the constitution. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 1247, 22 L. Ed. 2d 542 (1969). It is equally true that the constitutional right of privacy extends to a college dormitory room, Piazzola v. Watkins, 442 F.2d 284, 289-90 (5th Cir. 1971), as a college dormitory room is the equivalent of a student's "home away from home," American Future Systems I, 464 F.Supp. at 1262, and dormitory rooms are compared with the "interior of a private home," Brush v. Penn State, 489 Pa. 243, 414 A.2d 48, 51 (1980). The fact that students have privacy interests in their dormitory rooms, however, merely begins the inquiry. The Supreme Court has recognized two kinds of privacy that are constitutionally protected. The first protects the individual from disclosure of certain matters and the second protects the individual from unwarranted governmental intrusion when the individual seeks to make certain personal decisions. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S. Ct. 869, 554 876-77, 51 L. Ed. 2d 64 (1977). Only the latter interest is relevant in this case. That interest, however, has been restricted to so-called fundamental matters "relating to marriage, procreation, contraception, family relationships, child rearing, and education." Paul v. Davis, 424 U.S. 693, 713, 96 S. Ct. 1155, 1166, 47 L. Ed. 2d 405 (1976). The Plaintiffs, in apparent recognition of the fact that privacy rights established by Supreme Court decisions do not extend to the facts of this case, state that "the fact that certain aspects of the student-plaintiffs' privacy claims have not previously been considered and recognized by the Supreme Court does not preclude such recognition, by this Court." (Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at p. 24.) This case does not involve some intrusion into Brubaker's and Wingert's ability to make decisions about personal matters of a fundamental nature; nor does Penn State's policy preclude personal relationships, since it affects only relationships for commercial purposes at certain locations. Further, it is not apparent how the shifting of a group demonstration from a dormitory room to a common area imposes any infringement at all upon Brubaker's and Wingert's freedom of thought, action, or belief. Moreover, any conception that privacy doctrines include the right to invite ten or more persons into one's room for a commercial demonstration is inconsistent with the notion of the "right of privacy" under Supreme Court case law. For these reasons, the Court declines Plaintiffs' invitation to expand the right of privacy in this case. Since Defendants have shown that, as a matter of law, Plaintiffs' right of privacy has not been violated by Penn State's policy regarding commercial activities in dormitories, Defendants will be granted summary judgment as to this aspect of the case. Brubaker and Wingert also claim that Penn State's policies abridge their rights under Pennsylvania Landlord and Tenant Law. Under § 504-A of the Landlord-Tenant Act, 68 P.S. § 250.554 (Supp. 1981), a tenant has the right to invite to his apartment or dwelling units such employees, business visitors, tradesmen, deliverymen, suppliers of goods and services, and the like as he wishes. Further, the tenant has the right to invite to his dwelling for reasonable periods of time social guests, family members and visitors. "It is the intent of this article to insure that the landlord may in no way restrict the tenant's right to purchase goods, services and the like from the source of the tenant's choosing..." 68 P.S. § 250.554. There is some controversy as to whether Pennsylvania's Landlord-Tenant Act is applicable to Penn State's dormitories. Even assuming that the Act is applicable to Penn State's dormitories, Brubaker and Wingert have not demonstrated that Penn State's regulations with regard to commercial activities in its dormitories violates the Act. Penn State does not prohibit Brubaker and Wingert from inviting an AFS representative to their rooms to make a sale. Penn State also does not prohibit Brubaker and Wingert from having social guests in their dormitory rooms. No reasonable construction of the Landlord-Tenant Act leads to the conclusion that Brubaker and Wingert are permitted to engage in broad commercial transactions in Penn State's dormitories. Thus, as a matter of law, Brubaker's and Wingert's rights under Pennsylvania's Landlord-Tenant Act have not been violated. Summary judgment will therefore be granted to Defendants on this issue. III. Plaintiffs DelValle, Varsics, Habacher, and Spiller. DelValle, Varsics, Habacher and Spiller are Penn State students who do not reside in Penn State residence halls. They seek an order permitting them to attend and participate in AFS group presentations in common areas and dormitory rooms and to consummate sales from AFS in those rooms. (Complaint, Count IV.) These Plaintiffs were allegedly invited by Brubaker and Wingert to attend AFS demonstrations in private dormitory rooms. When Penn State ordered that these demonstrations not take place, on the ground that they were violative of Penn State's regulations regarding 555 commercial activities in dormitories, these Plaintiffs claimed that their right to attend those demonstrations was violated. In American Future Systems I, the Court of Appeals recognized that the First Amendment rights of the recipients of commercial speech are co-extensive with those of the speaker. American Future Systems I, 618 F.2d at 257 and 257 n. 16. The restriction on these Plaintiffs' ability to engage in commercial activity is even less than that placed on Brubaker and Wingert. The non-resident Plaintiffs are able to participate in an AFS demonstration in a common area of the residence hall but not in a dormitory room. Moreover, they might consummate a purchase of AFS goods anywhere except in a residence hall. It is presumed that Penn State cannot and does not prohibit these Plaintiffs from inviting an AFS representative to their own dwellings for demonstrations and sales. Thus, the Court fails to see how Penn State's regulations limiting commercial activities in its dormitories constitute any significant abridgement of these Plaintiffs' rights of speech, privacy, and association. Since these Plaintiffs have available all the alternative means of access to information about AFS products, the inconsequential restrictions imposed by Penn State's regulations cannot be considered to be violations of these Plaintiffs' First Amendment rights. Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S. Ct. 1614, 1618, 52 L. Ed. 2d 155 (1977). Reid v. Barrett, 467 F. Supp. 124, 128 (D.N.J.1979), aff'd 615 F.2d 1354 (3d Cir. 1980); Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471, 479 (2d Cir. 1976). Defendants are therefore entitled to summary judgment as to these Plaintiffs' claims. IV. Arbitrary Enforcement of Penn State's Regulations. Plaintiffs' final claim is that Defendants in violation of Plaintiffs' due process rights, have not enforced the challenged regulations in an even-handed, fair, and non-arbitrary manner. Plaintiffs argue in support of their due process claim that Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2976, 41 L. Ed. 2d 935 (1974), stands for the proposition that "the touchstone of due process is protection of the individual against arbitrary action of government." See also Chung v. Park, 514 F.2d 382, 387 (3d Cir. 1975). As Plaintiffs admit, "of course, the predicate of a due process claim is governmental violation of a person's liberty interest." (Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at p. 26, adopting Plaintiffs' Memorandum of Law in Support of Motion for a Preliminary Injunction at pp. 34-35.) It is certainly the case that were it established that Plaintiffs' constitutional rights of free speech, association and privacy were violated by Penn State's enforcement of its regulation regarding commercial activity in dormitories, this violation of Plaintiffs' rights would be within the zone of protected interest under the Fourteenth Amendment. E. g. Madera v. Board of Education, 386 F.2d 778, 783-84 (2d Cir. 1967), cert. denied, 390 U.S. 1028, 88 S. Ct. 1416, 20 L. Ed. 2d 284 (1968), citing Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832 (1897). However, the Court has found that Penn State's enforcement of its dormitory regulations does not violate any of Plaintiffs' collective constitutional rights or rights under Pennsylvania state law. Thus, even if Penn State's regulations were enforced in an arbitrary manner Plaintiffs' due process rights would not have been violated. In addition, Plaintiffs' complaint and supporting affidavits aver insufficient facts to support a claim of discriminatory enforcement of Penn State's policies. In this circuit, civil rights complaints must set forth facts with specificity, Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976), and this complaint fails to do so. Plaintiffs, in a conclusory manner, in Count II of their complaint, state that "by enforcing their stated policy, which purports to exclude from university residence halls all persons seeking to demonstrate or sell merchandise, 556 in an arbitrary, capricious, selective, discriminatory, and unreasonable manner, Defendants have deprived Plaintiffs of their rights to due process under the Fourteenth Amendment of United States Constitution." (Complaint, Count II). The sole evidence now advanced in support of its allegation is the affidavit of Joseph Healey, which states in part: Ms. Peterson explained that the University cannot monitor the residence halls at all times. Therefore, there may be illegal presentations going on that the University does not know about. However, when the university becomes aware of an illegal presentation through a student complaint or other means, they enforce the rule. This hardly establishes arbitrary and capricious enforcement of Penn State's policies. Indeed, it appears to establish consistent enforcement of the policies as soon as the university is made aware of violations of its rules. Since Plaintiffs have failed to state a claim upon which relief can be granted with respect to this due process claim, summary judgment will be granted in Defendants' favor on this issue. V. Conclusion. The Plaintiffs have not established that Penn State's enforcement of its regulations with regard to commercial activity in its dormitories violates any of the Plaintiffs' constitutional rights or rights under Pennsylvania state law. Since there is no dispute of any material issue of fact in this case, Defendants' motion for summary judgment will be granted. An appropriate order will be entered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519719/	646 S.W.2d 573 (1982) ESTATE OF Harvey DIGGS, Appellant, v. ENTERPRISE LIFE INSURANCE CO., Appellee. No. 01-82-0402-CV. Court of Appeals of Texas, Houston (1st Dist.). December 30, 1982. Rehearing Denied February 10, 1983. 574 Victor Branch, Houston, for appellant. Jeffrey McClure, Houston, for appellee. Before WARREN, JACK SMITH and BULLOCK, JJ. OPINION WARREN, Justice. This is an appeal from a summary judgment decreeing that appellant take nothing on her suit for recovery of the proceeds of a life insurance policy. On March 12, 1980, Harvey Diggs bought a credit life insurance policy simultaneous to his purchase of a new car. The application for insurance signed by Diggs contained the following paragraph: I hereby certify that I am in good health as of the effective date above and that I am presently not suffering from or within the preceding 24-months have not suffered from any heart disease, or other cardiovascular diseases, lung disease, or respiratory system ailments, cancer, urinary disease or disorders, epilepsy, stroke or other diseases of the brain or nervous system, diseases or disorders of the liver, gall bladder, kidney, bladder, stomach or intestinal tract, high blood pressure or tumors of any kind. On February 15, 1981, Harvey Diggs died of cardiac arrhythmia, a heart condition. After a claim for payment was denied, his wife, as personal representative of the estate, sued for the amount due under the policy. Appellee's answer to the suit and its motion for summary judgment contended that it was induced to issue the policy of insurance by certain false, material representations, made by the deceased on his application for insurance, concerning his health and medical history. Appellee's summary judgment proof on its affirmative defenses consisted of the deceased's medical records, the deposition of Dr. M.J. O'Donnell, and the sworn affidavit of C. Craig Cole. Appellant filed a written response to appellee's motion for summary judgment, but presented no proof. In two points of error, appellant claims that the court erred in granting the summary judgment because appellee's evidence failed to establish as a matter of law all of the essential elements of its affirmative defense. Five elements must be pled and proved before an insurer may avoid payment on an insurance policy because of a misrepresentation by an insured: 1) the representation by the insured, 2) the falsity of the representation, 3) reliance thereon by the insurer, 4) the intent to deceive by the insured, and 5) the materiality of the representation. Mayes v. Massachuetts Material Life Ins. Co., 608 S.W.2d 612 (Tex.1980). Dr. Manus J. O'Donnell, a cardiologist, testified by deposition that he first met Harvey Diggs at Methodist Hospital in Houston in 1976; that Mr. Diggs complained of a shortness of breath, swelling of his legs, chronic cough, spitting blood; that Mr. Diggs had a history of heart disease dating back to 1972; that upon examination, Mr. Diggs was found to have congestive heart failure with marked enlargement of the heart; that there is no known cure for this condition; that Mr. Diggs' condition did not change from 1976 to March 12, 1980; that it is unusual for a patient in Mr. Diggs' 1976 condition to live longer than five years; that he explained Mr. Diggs' medical condition to him and explained the limitations that the condition would impose on his life-style; that various drugs were prescribed to treat the disease; and that he 575 examined Mr. Diggs on April 22, 1980 and found a significant degree of heart failure. Mr. Diggs' medical records show that, on the advice of his doctor, he took a disability retirement from his job in 1977. These records also show that, on the day after the application for insurance was signed, Mr. Diggs received treatment for his heart condition at the Texas Medical Center. The examination on that day revealed that Mr. Diggs' heart was pronouncedly enlarged. Appellee's proof conclusively shows that the deceased knowingly made a false representation regarding his medical history. It is inconceivable that any person with Diggs' medical history could fail to know he was not in good health or fail to know that he was then suffering from a serious heart ailment. Prudential Ins. Co. of America v. Beaty, 456 S.W.2d 164 (Tex. Civ.App.-Texarkana 1970, no writ). The sworn affidavit of C. Craig Cole, attached to appellee's motion for summary judgment, stated that he had personal knowledge of the facts testified to in the affidavit; that the representation made by Harvey Diggs on his application "... that as of March 12, 1980, he was in good health and was not suffering from, or within the preceding 24 months had not suffered from any physical or mental diseases," was relied on by appellees in reaching a decision to issue the life insurance policy. There is no showing that Cole was employed by, or had any connection with the insurance company. Appellant contends that the affidavit of C. Craig Cole was insufficient to conclusively prove that appellee relied on the representations of Mr. Diggs. We agree. Although the affiant stated that he had personal knowledge of the facts testified to in the affidavit, there is nothing in the affidavits showing why he might have personal knowledge of the matters stated in the affidavit. To be sufficient, the affidavit must in some way show that the affiant is personally familiar with the facts so that he could personally testify as a witness. Weaver v. Brandin, 394 S.W.2d 709 (Tex. Civ.App.-Houston 1965, writ dism'd); Melody v. Texas Society of Professional Engineers, 421 S.W.2d 693 (Tex.Civ.App.-Dallas 1967, no writ). A recitation that the affiant is of legal age, has never been convicted of a felony and is making the affidavit on personal knowledge as recited in Cole's affidavit, is not in itself sufficient to show affirmatively that an affiant is competent to testify, as required by Tex.R. Civ.P. 166-A(e). A fact considered by a layman to be personally known may be hearsay in law. We are of the opinion that the affidavit of Craig Cole was insufficient to establish that appellee relied on Diggs' representations of good health. However, the first paragraph in the certificate of insurance, beginning immediately below the signature of the deceased, states, "In consideration of the premium shown above and the representation of good health, the company certifies that the above named debtor is afforded coverage or coverages in which a premium or premiums are specified (but none other) subject to the terms and conditions of the Group Life Policy." The application and the entire certificate of insurance are contained on one printed page. The completed blocks show that a reducing term policy in the original amount of $8895.90 was issued and that a premium of $182.41 was paid. The certificate of insurance itself is sufficient to prove that the insurer relied on Mr. Diggs' representation of good health. We hold that Mr. Diggs' representation that he was not suffering from heart disease was material to the risk, as a matter of law. Lee v. National Life Ins. Co., 632 F.2d 524 (5th Cir.). There was no summary judgment proof regarding Mr. Diggs' intent to deceive, the fifth element of appellee's affirmative defense. Unless it can be presumed from the other findings, appellee's proof falls short. There are Texas cases supporting the proposition that "the utterance of a known false statement, made with the intent to induce actionis equivalent to an intent to deceive." Texas Industrial Trust, Inc. v. Lusk, 312 S.W.2d 324 (Tex.Civ.App.-San Antonio 1958, writ ref'd); Wolfing v. *576 Prudential Ins. Co. of America, 417 S.W.2d 498 (Tex.Civ.App.-Waco 1967, no writ). If these cases correctly state the present law, and are applicable to our case, then the affirmative defense, misrepresentation, in a situation such as ours, may be proved conclusively by a showing that an insurance applicant with a long history of heart trouble purchased a policy of insurance, which policy included a statement that it is being issued upon the insured's representation of good health. Instead of proving the five elements required by Mayes, supra, two elements only need be proved and the remaining three presumed as a matter of law. In Lee, supra, Judge Reavley, speaking for the court, expressed the opinion that Washington v. Reliable Life Insurance Co., 581 S.W.2d 153 (Tex.1979) apparently changed the law on summary judgment with respect to the misrepresentation defense of an insurance policy; that prior to Reliable, intent could be presumed from other facts, but not thereafter. At p. 529, he writes, "Therefore, Washington appears to establish the rule that intent to deceive or induce issuance of an insurance policy can never be proved as a matter of law to establish the misrepresentation defense in the absence of a warranty that the facts contained in the application are true or evidence of collusion between the applicant and the insurance agent." We have neither warranty nor collusion in our case. We are of the opinion that we may not presume an intent to deceive from the fact that Mr. Diggs, with a long history of heart ailments, made false statements on his application for insurance. Since there is no evidence regarding Mr. Diggs' intent to deceive, the summary judgment was improperly granted. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519712/	254 Pa. Super. 186 (1978) 385 A.2d 588 COMMONWEALTH of Pennsylvania, Appellee, v. Phillip SNYDER, Appellant. Superior Court of Pennsylvania. Submitted December 14, 1977. Decided April 13, 1978. 188 John P. Karoly, Jr., Assistant Public Defender, Allentown, for appellant. Edward J. Zamborsky, Assistant District Attorney, Allentown, and William H. Platt, District Attorney, Allentown, for Commonwealth, appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. PER CURIAM: This is an appeal from the judgment of sentence of the Court of Common Pleas of Lehigh County, Criminal Division, by the defendant-appellant, Phillip Snyder, following a conviction of possession with intent to deliver and delivery of a controlled substance. (The Controlled Substance, Drug, Device and Cosmetic Act, 1972, April 14, P.L. 233 Sec. 1 of 64, 35 P.S. 780-101, et seq.) Appellant was arrested by the State Police November 14, 1974, in connection with the sale of a quantity of marijuana to an undercover state policeman (Trooper Goff) by Thomas Leggett. The sale had been set up the day before by a confidential informant, known to State Police only as "Danny". The informant's only task was to introduce Trooper Goff to Leggett. The introduction took place November 14, 1974. There is a dispute as to whether "Danny" remained in the vicinity thereafter. Trooper Goff testified that he instructed "Danny" to leave the scene immediately. (N.T. 21) The Appellant testified that "Danny" was still there when he arrived. When Appellant arrived on the scene, he backed his truck up the driveway, got out of his truck and went to the rear of vehicle where Mr. Leggett and Trooper Goff 189 were standing. He handed Trooper Goff a paper with the marijuana weights marked thereon (Commonwealth Ex. # 1). He then opened the rear door of his vehicle and removed a brick of marijuana and gave it to Goff to examine. Immediately thereupon the State Troopers staked out in the vicinity, converged and arrested Leggett and the Appellant. Appellant was arraigned on charges of Possession and Delivery of a Controlled Substance. On May 28, 1975, following a hearing, Appellant's Application to disclose or produce a material eyewitness was denied. A jury trial was held on December 10 and 11, 1975. Appellant was convicted on both counts. Motions for New Trial and in Arrest of Judgment were denied on January 21, 1977. This Appeal followed. Appellant initially asserts that the lower court should have ordered the Commonwealth to disclose the identity and whereabouts of their confidential informant. In support of this argument, Appellant relies on Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967) wherein the court held that where police testimony is the sole evidence of the accused's guilt and where testimony from a more disinterested witness is available, the Commonwealth must disclose the identity and whereabouts of the witness, regardless of whether he is a confidential informant. Appellant contends that because the police version and his version of what occurred were so conflicting, the Commonwealth should have been compelled to disclose the identity and whereabouts of "Danny", who presumably would provide corroboration to one version or the other. We agree that in a situation similar to Carter, the Commonwealth should release the information about their informant. We disagree that the instant case calls for such a finding. Here, there is a dispute as to whether "Danny" ever witnessed the transaction between the State Police and the Appellant. It is here important to note that there was another witness available to the Appellant. Thomas Leggett was present at the scene and was available to the 190 defense. They elected not to call him. Appellant's alibi directly involved Mr. Leggett. Appellant claimed he was present at the scene only to pick up his motorcycle which he had loaned to Leggett. Who was in a better position to corroborate his testimony than Leggett? We believe that the availability of Leggett as a defense witness absolved the Commonwealth of all duty to produce or disclose information concerning their confidential informant. Assuming, arguendo, that there was no non-police witness to the transaction, we believe that the Commonwealth revealed as much as it could concerning the informant. At the May 28th hearing on Appellant's Application to Produce or Disclose, some five months prior to trial, State Trooper Goff testified that he knew the informant only as "Danny" and that the most specific address he could give was "somewhere in Northern New Jersey" (N.T. 24). The Commonwealth has no duty to produce a witness whose whereabouts is unknown. Commonwealth v. Detre, 462 Pa. 344, 341 A.2d 112 (1975). Appellant next argues that the Commonwealth failed to satisfy its burden of proof that the Appellant possessed and delivered a controlled substance. The Commonwealth produced Thomas Jensen, employed by the State Police in their Crime Lab, as an expert witness. He testified that, in his opinion, the substance seized from Appellant's possession was marijuana as defined by the Controlled Substance Act, supra. Appellant argues that Jensen was not able to distinguish between the species of marijuana known as Cannabis Sativa L. (the substance defined and prohibited in the Act), and the species of marijuana known as Cannabis Indica (not defined in the Act), and, therefore, the Commonwealth did not prove that the substance the Appellant allegedly possessed and delivered was the prohibited substance, Cannabis Sativa L. A review of the testimony indicates that Jensen, while admitting that some botanists recognize different species of marijuana and that if, in fact, there are different species, he did not have the expertise to distinguish between them, 191 never testified that he recognized the existence of any different species of marijuana. Appellant, however, assumes the existence of two species of marijuana and because Jensen could not distinguish between them, he is unqualified to testify as an expert. The law is clear that the admission of expert opinion evidence is a matter within the sound discretion of the trial court. Hussey v. May Department Stores, 238 Pa.Super. 431, 357 A.2d 635 (1976). Here, there is no reason to believe the trial court abused its discretion. Mr. Jensen satisfied the court with his credentials. He is employed by the State Police as a chemist in their Crime Lab. Appellant next contends that the lower court should have granted a mis-trial where the District Attorney used the word "heroin" in his opening statement in a case which did not involve heroin. The opening statement of the District Attorney was not recorded. The Appellant's attorney did not object at the time the word was allegedly uttered but only after the District Attorney completed his opening statement. Where an opening statement is not recorded, any objection as to its content must be made at the time the objectionable material is uttered, otherwise the objection is waived. Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976). This is to eliminate unnecessary disputes concerning what was said. In this case, that is precisely what happened. Upon the Appellant's objection, the Judge could not recall hearing the word and the Prosecutor did not recall having uttered it. The Judge overruled the Appellant's objection. Following Adkins, we believe that the Appellant waived any argument on this objection by failing to voice it in a timely manner. Appellant's final contention is that the physical evidence introduced by the Commonwealth should not have been received due to the fact the Commonwealth did not call all witnesses having access to the evidence during the period it was in custody. *192 It is well established that the Commonwealth need not produce every individual who came into contact with an item of evidence, nor is there a need to eliminate all possibilities of tampering. Commonwealth v. Rick, 224 Pa.Super. 33, 366 A.2d 302 (1976). The Commonwealth need only establish a reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court. Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573 (1975). Trooper Karvan testified that exhibits 1 and 2 were kept in a locked cabinet file and that exhibit 3 was kept in a locked vault. He indicated that probably four other officers had access to the evidence. (N.T. 81-84). Appellant offers no evidence to indicate that the exhibits were tampered with or that they were altered in any way. In the absence of any evidence which would create a reasonable doubt, we accept the inference to be drawn from the Commonwealth's testimony. Appellant's allegations are without merit. Judgment affirmed. HOFFMAN and SPAETH, JJ., concur in the result. WATKINS, former President Judge, did not participate in the consideration or decision of this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519722/	646 S.W.2d 52 (1983) STATE of Missouri, Respondent, v. Michael Anthony SHAW, Appellant. No. 63121. Supreme Court of Missouri, Division No. 1. February 23, 1983. Morton L. Schwartz, St. Louis County, for appellant. John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent. JAMES R. REINHARD, Special Judge. Appellant Michael Shaw was convicted by a jury of capital murder and sentenced to a term of life imprisonment without probation or parole for fifty years. Jurisdiction is vested in this Court pursuant to Mo. Const. Art. V, § 3. On May 14, 1980, appellant and a companion, Jessie Houston, Jr., went into a store to steal cigarettes. After they came out of the store, Houston asked appellant 53 why he had not taken any cigarettes. Appellant replied that he did not steal, "robbery was his thing." Later that afternoon, appellant asked Houston to rob a store with him. He told Houston the store was run by a foreigner, and he did not want to rob the store alone because the store owner knew him. According to Houston, appellant was to act as a decoy while Houston robbed the store. Houston refused to participate in the robbery. That afternoon, appellant saw an acquaintance, Christopher Reed, in a car with two other men. Appellant got into the car with Reed and his friends and asked them for a ride home. On the way, appellant asked Reed to help him rob a store located around the corner from appellant's house. He asked Reed to keep a lookout for him while he committed the robbery. The men arrived at appellant's house, and appellant went inside and came out with a butcher knife which he stuck down his pants. Reed and appellant walked to the store. Reed stayed outside while appellant went into the store. Reed went inside a few minutes later and observed appellant talking with a man standing behind the counter. Reed made a small purchase and left. Appellant came out and said he going back in to "take care" of the man, and he asked Reed to help get the money out of the cash register. When Reed went back into the store, he saw appellant pounding on the cash register which was stuck. Reed also saw the man lying in the corner bleeding. Reed and appellant managed to open the cash register, and they took some money and approximately twenty or thirty cartons of cigarettes. Just before the pair left the store, Reed saw appellant stab the victim five or six times. Reed and his friends drove appellant to the corner of Delmar and Hamilton and left him there. Appellant called his girlfriend, Mary, and asked her to pick him up at the corner of Delmar and Hamilton. When she arrived, appellant had a grocery bag which he said contained cigarettes. Around 10:30 that evening, Mary and appellant picked up Nathan, a friend of appellant. Appellant directed Mary to drive past Ead's Market. There were police cars in front of the store. Appellant told Nathan that demonstrated what appellant could do. After taking Nathan home, appellant and Mary returned to Mary's house where appellant spent the night. Appellant told Mary he had committed a robbery. After appellant was arrested, Mary visited him in jail, and he asked her not to testify against him. Appellant was arrested and charged in a two-count indictment with capital murder and first degree murder in connection with the death of Jahed Makhamred, the proprietor of Ead's Market. The victim, a Jordanian, was discovered behind the counter, stabbed. The autopsy revealed the victim had received a blow to the left side of his head and had a cluster of ten stab wounds in the right anterior chest. Any one of the stab wounds was sufficiently severe to have caused death. Appellant's palm print was found on the cash register in Ead's Market. I. Appellant contends there was insufficient evidence to support a conviction of either capital murder or first degree murder because no murder weapon was produced and two of the state's witnesses were not credible. In determining the sufficiency of the evidence, we accept as true all evidence and inferences favorable to the state, and we disregard all evidence and inferences to the contrary. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S. Ct. 2682, 53 L. Ed. 2d 275 (1977). The evidence recited above was sufficient to support the appellant's conviction. Reed testified that he had bargained for a reduction in charges and sentence in exchange for his testimony against appellant. Houston, the other witness, testified that he spoke to the police in order to prevent the police from arresting him for the murder. That a witness has something substantial to gain by testifying against a criminal defendant does not render his or her testimony inadmissible. Rather, a witness' motives affect the weight and credibility of the 54 testimony, and those are matters for the jury to determine. State v. Jackson, 608 S.W.2d 420, 421 (Mo.1980). This Court does not weigh the evidence. State v. Brooks, 618 S.W.2d 22, 23 (Mo. banc 1981). The appellant cites no authority to support his argument that the state failed to make a submissible case because it failed to produce the murder weapon. Neither have we found any such authority. The state's inability to produce the murder weapon does not affect the submissibility of the case. See State v. Ruck, 194 Mo. 416, 92 S.W. 706, 711 (Mo.App.1906). II. Appellant alleges the trial court erred by permitting the state to indict and try him on both murder and armed robbery charges. He argues that because both charges arose out of the same set of facts, his indictment, trial, and conviction of both subjected him to double jeopardy in violation of the Fifth Amendment to the United States Constitution. Appellant was tried in March of 1981 on only the murder charge and, at that time, admitted he had been neither tried nor convicted on the robbery charge. Appellant relies on Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977), in which the United States Supreme Court held that a person who has been tried and convicted for a crime that has various included incidents cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense. We find, however, without making any judgment about the validity of appellant's claim of double jeopardy, that his claim is not cognizable in this appeal. The double jeopardy clause prohibits a second prosecution for an offense after a conviction for the same offense. State ex rel. Westfall v. Campbell, 637 S.W.2d 94, 96 (Mo.App.1982). It does not affect the validity of the first conviction. The murder conviction that is the subject of this appeal was the first prosecution arising out of the incident in question and, therefore, did not subject appellant to double jeopardy. His claim of double jeopardy must be raised in the second prosecution arising out of this incident. III. Appellant also maintains the trial court erred in not granting his request for an order for a second psychiatric evaluation. Appellant made his request on the first day of the trial, several months after the first psychiatric evaluation. Both § 552.020.5, RSMo.Supp.1982 (effective 1980), which deals with mental incapacity to stand trial, and § 552.030.4, RSMo.Supp.1982 (effective 1980), which deals with insanity as a defense, provide an accused is entitled to a second psychiatric examination if he or she requests it within five days after receiving the report from the first examination. Appellant admits his request was not timely made. Because appellant's request for a second examination was untimely and because there were no circumstances rendering the first psychiatric opinion suspect, the court did not abuse its discretion in denying appellant's request. See Thornton v. State, 614 S.W.2d 724, 725 (Mo.App.1981); State v. Collier, 624 S.W.2d 30, 33 (Mo.App.1981). IV. Appellant also claims the court erred in refusing to give an instruction on the defense of insanity. Appellant alleges the instruction is a fundamental right under the Fourteenth Amendment to the Constitution of the United States. Section 552.030.7, RSMo.Supp.1982 (effective 1980), provides that whether a person had a mental disease or defect excluding responsibility for his conduct is an issue for the jury to decide upon the introduction of substantial evidence of such disease or defect. In the instant case, no such evidence was introduced. The testimony of the psychiatrist who had examined appellant before the trial was the only evidence relevant to the issue of mental disease or defect. The psychiatrist, called as a witness by appellant, testified that, at the time of the killing, appellant was free from mental disease or defect. In the absence of any *55 evidence showing mental disease or defect, the court did not err in refusing to give an insanity instruction. MAI CR2d 2.33; State v. Thomas, 625 S.W.2d 115, 124 (Mo. 1981). V. Appellant also contends he was denied a fair trial because all the jurors were white. In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979). Appellant proffers no statistics, but merely states that there was a smaller percentage of blacks on the jury panel than in the overall population of St. Louis County. This Court has been and remains reluctant to find systematic exclusion absent a statistical showing of such exclusion. State v. Reese, 625 S.W.2d 130, 132-33 (Mo. banc 1981). Furthermore, systematic exclusion of a distinctive group is not established by the nonrepresentation or underrepresentation of the group on a particular jury panel. State v. Ball, 622 S.W.2d 285, 291 (Mo.App. 1981). This point is without merit. VI. Finally, appellant contends the trial court erroneously permitted the prosecutor to ask leading and suggestive questions and erroneously permitted the prosecutor to repeat answers given by witnesses. While the prosecutor did ask various leading questions and did repeat some answers given by witnesses, this is not grounds for reversal. Only timely made and adversely ruled objections may be raised as error on appeal. State v. Jackson, 500 S.W.2d 306, 314 (Mo. App.1973). The trial court sustained appellant's objections to the prosecutor's leading questions and to his restatement of witnesses' answers. Appellant requested no other relief. This point presents no reversible error. Judgment affirmed. GUNN, P.J., RENDLEN, C.J., and CRANDALL, Special Judge, concur. BILLINGS and DONNELLY, JJ., not sitting.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519723/	385 A.2d 3 (1978) ARDEN-MAYFAIR, INC., Plaintiff, v. LOUART CORPORATION, Marshall I. Kass and Henry L. Melczer, et al., Defendants. Court of Chancery of Delaware, New Castle County. Submitted January 23, 1978. Decided March 15, 1978. Joseph A. Rosenthal, of Morris & Rosenthal, Wilmington, for plaintiff. Bruce M. Stargatt, Jack B. Jacobs, and Richard A. Levine, of Young, Conaway, Stargatt & Taylor, Wilmington, for defendants Louart Corp., Marshall I. Kass and Henry L. Melczer. BROWN, Vice Chancellor. The defendant Louart Corporation, a California corporation, as well as its president, Marshall I. Kass, and its vice president, Henry L. Melczer, (hereafter "the Louart defendants") have moved to dismiss the complaint against them on the grounds of lack of jurisdiction over the person and for insufficiency of service of process. The plaintiff, Arden-Mayfair, Inc., (hereafter "Arden-Mayfair") is a Delaware corporation which maintains its principal business activities in California. At the root of the controversy are California statutes, effective January 1, 1977, which require in their effect that as to any foreign corporation doing more than 50 per 4 cent of its business and having more than 50 per cent of its stockholders in the State of California, the election of its board of directors must be based upon cumulative voting among its shareholders and, in addition, the terms of the directors may not be on a staggered or classified basis. West's Ann.Corp.Code §§ 2103, 2115. The Delaware charter and bylaws of Arden-Mayfair run afoul of this subsequently enacted California law since they contain no provisions for cumulative voting. In addition, the terms of its directors are staggered. It is not disputed at this point that Arden-Mayfair is within the literal coverage of these California statutes. Louart Corporation is a substantial shareholder of Arden-Mayfair. Its officers, Kass and Melczer, also own Arden-Mayfair stock in their individual capacities. All three are nonresidents of Delaware. By letter of December 30, 1976 Louart Corporation notified Arden-Mayfair of the impending amendment to the California law and took the position that future elections of Arden-Mayfair directors would have to be carried out in accordance with the California law rather than pursuant to the terms of Arden-Mayfair's charter as enacted under Delaware law. In response, Arden-Mayfair filed this declaratory judgment action seeking a judicial determination by this Court that the application of the California law would not apply to the election of its board of directors. Service of process was initiated upon the Louart defendants by certified mail and publication pursuant to the substituted service of process provisions of 10 Del.C. § 365. The Louart defendants thereafter removed the action to the United States District Court for the District of Delaware and moved to dismiss for basically the same reasons advanced here. In a written opinion of July 19, 1977 the District Court remanded the case to this Court without deciding the issue. In support of their motion the Louart defendants rely upon the undisputed facts (1) that they are not residents of Delaware, (2) that they carry on no business in Delaware, and (3) that they own no property physically located in Delaware. On the present record it appears that the only physical contact had with Delaware by any of the Louart defendants was on a single occasion when the defendant Kass passed through this State on his way from Washington, D.C. to New York City. Relying on the recent decision of the United States Supreme Court in Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977), as well as the supporting predecessor decisions of U. S. Industries, Inc. v. Gregg, 540 F.2d 142 (3rd Cir. 1976) and Barber-Greene Co. v. Walco National Corp., 428 F. Supp. 567 (D.Del.1977), the Louart defendants take the position that they have no "minimum contacts" with the State of Delaware such as would constitutionally support substituted service of process upon them by certified mail and publication pursuant to 10 Del.C. § 365. This § 365 is the statute which provides the basis for the assertion of in rem jurisdiction by the Court of Chancery. Its obvious purpose is to give this Court jurisdiction to decide disputes concerning subject matter under its jurisdiction, Abercrombie v. Davies, Del.Ch., 118 A.2d 358 (1955). It is a statutory grant of power to bring nonresidents before this Court by constructive service of process, unattended by seizure, if the suit is one wherein the relief sought relates to the status, title or ownership of property actually located with its jurisdiction. Perrine v. Pennroad Corporation, Del.Ch., 168 A. 196 (1933); Krizanek v. Smith, Del.Supr., 87 A.2d 871 (1952); Jacobs v. Tenney, 316 F. Supp. 151 (D.Del. 1970). In the absence of the aforesaid decisions of Shaffer v. Heitner and Barber-Greene it is unlikely that the present motions questioning jurisdiction would have been filed. This is due to the fact that the Delaware General Corporation Law provides that the situs of the stock of a Delaware corporation is to be regarded as in this State for all purposes except taxation. 8 Del.C. § 169. Since the suit here does not seek to impose monetary liability on any of 5 the defendants but rather seeks only to clarify and reinforce the voting rights of Arden-Mayfair shareholders with regard to the election of directors, it is one which seeks a decree as to the status and ownership rights of corporate stock having its situs in Delaware and thus, on the strength of previously existing precedent, service on nonresident stockholders by publication under § 365 would have been sufficient. Krizanek v. Smith, supra; Perrine v. Pennroad Corporation, supra; Hodson v. Hodson Corp., Del.Ch., 80 A.2d 180 (1951). In Shaffer v. Heitner, however, as well as in U. S. Industries, Inc. v. Gregg, supra, an attack was made on the constitutionality of service under 10 Del.C. § 366, this being the Delaware sequestration statute which permits the attachment of property located in this State for the purpose of compelling its nonresident owner to submit to in personam jurisdiction in this Court with regard to issues which may not necessarily deal with the status, title or ownership of the property sequestered. In both of these cases the validity of service of process in this manner was defended on a quasi in rem rationale based upon the premise that under 8 Del.C. § 169 the situs of the corporate stock there sequestered was in Delaware. In both cases, however, service was held to be constitutionally defective due to a lack of "minimum contacts" with Delaware by the nonresident defendants in violation of the due process requirement announced by International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). In each case it was conspicuously noted that the statutory situs of the nonresidents' stock under 8 Del.C. § 169 constituted their sole and isolated connection with the State of Delaware. And in each case, the purpose of the suit was to impose monetary liability on the nonresident defendants. To focus at first glance upon the underlying factors which gave rise to these two decisions would seem to provide a ready basis for distinguishing them from a § 365 situation wherein in personam jurisdiction was not the ultimate goal. However, two other considerations are significant. First, in Barber-Greene, decided some three months before Shaffer v. Heitner, Judge Caleb M. Wright of the Delaware District Court, in an exercise of judicial clairvoyance, and by way of interpretation of U. S. Industries Inc. v. Gregg, erased the prospect of drawing such a distinction from that decision, concluding as follows at 428 F. Supp. 570: "This holding is certainly of relevance to the instant case, and the Court is of the view that it disposes of plaintiff's contention that the holding of U. S. Industries v. Gregg does not apply to substituted service under 10 Del.C. § 365. The Third Circuit holding that the characterization of the type of jurisdiction is irrelevant in analyzing whether such jurisdiction is constitutionally supportable, compels this Court to perform the exact same analysis under both sections [§ 365 and § 366] to determine whether or not there are adequate minimum contacts to support jurisdiction." Barber-Greene was a suit brought under 8 Del.C. § 203, the Delaware tender offer statute, in which the plaintiff, a Delaware corporation, charged the nonresident defendant corporation with a violation of the statue and requested a decree entitling it to refuse to transfer on its books any stock purchased by the defendants. Monetary damages were also sought. Jurisdiction over the nonresident defendants was attempted under both § 365 and § 366. It was resisted under Gregg based upon a lack of minimum contacts, a position with which the District Court agreed. While recognizing that there was a more significant connection with Delaware there than there was in Gregg, it nonetheless appeared that the sole contact deserving consideration was the local situs of the plaintiff's stock under 8 Del.C. § 169. In granting the motion of the defendants to dismiss, the court stated as follows at 428 F. Supp. 572: "... a prerequisite to the consideration of plaintiff's contacts with the forum in evaluating whether or not there are adequate minimum contacts to support jurisdiction, is that the contacts must be meaningful rather than formal 6 and legalistic. * * Delaware's interest in providing a forum for adjudicating disputes over the acquisition of shares of stock of Delaware corporations may be adequate to satisfy due process standards in some situations, but it is insufficient to sustain jurisdiction where the only tie to Delaware is that the plaintiff corporation was incorporated here." Thereafter, in Shaffer v. Heitner, supra, the United States Supreme Court, in ruling on the constitutionality of an attempted sequestration under § 366, made it abundantly clear that henceforth the "minimum contacts" requirement of International Shoe Co. v. Washington must also govern the validity of in rem jurisdiction premised on the existence of property within the forum state. In setting aside the last vestige of Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1877) the Supreme Court stated as follows at 433 U.S. 212, 97 S. Ct. 2584, 53 L. Ed. 2d 703: "The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state court jurisdiction that is fundamentally unfair to the defendant. "We therefore conclude that all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." And while the Supreme Court acknowledged that there could be instances where the presence of property in a state could bear on the existence of jurisdiction by providing contacts among the forum state, the defendant and the litigation, citing for example situations in which claims to the property itself are the source of the underlying controversy between the parties, or where the dispute is about either the right to possession or the marketability of property within a state's borders, or where the defendant's ownership of the property is conceded "but the cause of action is otherwise related to rights and duties growing out of that ownership," it was nonetheless held as follows at 433 U.S. 209, 97 S. Ct. 2582, 53 L. Ed. 2d 701: "Thus, although the presence of the defendant's property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State's jurisdiction. If those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum." (Emphasis added.) Strangely enough, this seems to indicate that even the physical presence of property in a state, be it real or personal property, will no longer, standing alone, support in rem jurisdiction for an action related to the rights and duties arising out of its ownership. It must naturally follow that where the presence of the property is fictional rather than actual, the basis for in rem or quasi in rem jurisdiction is no stronger. Applying the foregoing to the present situation, the sole connection of the Louart defendants with this forum is that they are the owners of corporate stock which, by statute, has its fictional (and quite legal) situs in Delaware. In addition, the action as to which their involvement is sought concedes the Louart defendants' ownership of the stock and seeks only to determine the voting rights of Arden-Mayfair stock at an annual election of directors as such rights may or may not be affected by the California statutes on which the Louart defendants rely. However, neither this latter factor nor the present status of the record suggests any of the nebulous "other ties" which have now become so vital to the ability of a state to supervise property rights which exist by virtue of its sovereignty. Consequently, as applied to the existing facts of the situation, it appears that under the "traditional notions of fair play and substantial justice" which form the framework for International Shoe, Shaffer v. Heitner, U. S. Industries, Inc. v. Gregg and Barber-Greene, the nonresident Louart defendants have a constitutionally protected *7 right to be free from appearing in the courts of the state of Arden-Mayfair's domicile in a suit precipitated by them and brought to establish the present nature and extent of their voting rights (as well as the voting rights of all other shareholders) in Arden-Mayfair's stock. And this right springs from the happenstance that the only cognizable contact of the Louart defendants with Delaware so far has been their acquisition of corporate stock having its legal situs in Delaware, a factor which, standing alone, is no longer of any consequence for the purpose of substituted service of process. Such appears to be the current status of the law insofar as in rem jurisdiction is concerned. The motion of the Louart defendants to dismiss the complaint as to them based upon lack of jurisdiction and for insufficiency of service of process is granted. Order on notice.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519710/	253 Pa. Super. 334 (1978) 385 A.2d 365 COMMONWEALTH of Pennsylvania v. Anna Mae ANDERSON, Appellant. Superior Court of Pennsylvania. Submitted April 17, 1975. Decided April 13, 1978. 336 John P. Liekar, Public Defender, Canonsburg, for appellant. Jack H. France, Assistant District Attorney, Charleroi, and Jess D. Costa, District Attorney, Bentleyville, for Commonwealth, appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. HOFFMAN, Judge: This case presents an issue of first impression in Pennsylvania: must a coroner advise a parent whom he suspects of causing her child's death by abuse, of her Miranda[1] rights. We conclude that the federal constitution did not obligate the coroner in the instant case to apprise appellant of her Miranda rights. Accordingly, we affirm the judgment of sentence.[2] On January 11, 1972, Washington County police officials arrested appellant and filed a criminal complaint which charged her with the involuntary manslaughter[3] of her four year old son. On January 21, 1972, appellant's attorney filed an application to suppress oral and written statements 337 obtained in violation of appellant's rights under the Fifth Amendment to the United States Constitution.[4] The Commonwealth filed an answer denying appellant's assertion. On March 20, 1972, the lower court conducted a suppression hearing. At this hearing, Mr. Farrell Jackson, Coroner of Washington County, testified that on Friday, December 31, 1971, an employee of a local hospital informed him that a child named Richard Anderson had died earlier that day, possibly as a result of child abuse. The coroner immediately ordered the removal of the child's body to another hospital so that a pathologist could perform a post-mortem examination to determine the cause of death. The coroner also learned that appellant was the child's mother. On January 3, 1972, the coroner telephoned appellant and asked her to come to his office at 10:00 a.m. that day; appellant acceded to this request. When she arrived, Coroner Jackson stated that he asked her to come to his office because the hospital had reported a suspicion that child abuse had caused the child's death. He also disclosed that he had ordered a pathologist's report which would be completed in a day or two. The subsequent conversation lasted 45 minutes. The coroner's secretary transcribed the interchange. The discussion concerned the nature of the coroner's duties and general details of how the death occurred. In sum, it was exploratory rather than accusatory. Appellant attributed her child's demise to a fall; she made no self-incriminating statements. At the close of the conversation, the coroner asked appellant to return to his office at 10:30 a.m. on January 5, 1972, in order to discuss the findings contained in the expected pathologist's report. The coroner suggested that appellant bring an attorney. At 10:30 a.m. on January 5, 1972, appellant again appeared at the coroner's office; she had not retained an attorney. Coroner Jackson informed appellant of the pathologist's report which indicated possible child abuse and 338 that the injury which resulted in death could not have been caused by a fall. Further, the coroner testified: "Well, I discussed the nature of the death, the cause of the death, and informed her that the doctors who were involved are compelled by law to report these, and as a coroner's office it is our duty to see to it that those who do such things are prosecuted or recommended for prosecution and this is my intent, and I felt from what I had learned that she was involved, and this is what this office intended to do." (Notes of Suppression Hearing, p. 7) Appellant then expressed a willingness to tell the coroner what happened. Before further questioning, the coroner reminded appellant that he had advised her on January 3, 1972, to consult with an attorney; appellant responded that she did not know if he had given such advice. Appellant also stated that she had wanted to consult with an attorney. The coroner then asked the following question: "Now, you appeared here this morning without an attorney and what you are about to say now, is voluntary on your part?" (N.S.H. 9) Appellant responded affirmatively and then implicated herself by stating that she struck her child with her hand. The trier of fact found that this blow caused his death. After appellant made her statement, the interview ended. Appellant returned home. Coroner Jackson proceeded to the District Attorney's office to ascertain what he should do next. On cross-examination, the coroner asserted that even in the absence of appellant's admission, he would have recommended further investigation to the District Attorney because, based upon the pathologist's report, he believed that appellant had abused her son and caused his death. The District Attorney advised him that he had not fully informed appellant of her Miranda warnings and that he should call her back. The coroner then notified appellant to return to his office at 2:00 p.m. that afternoon. A police sergeant, a county detective, the coroner, and his secretary awaited; appellant returned alone. The coroner informed appellant that he had failed to instruct her properly about her rights against self-incrimination before the second interview. 339 A police sergeant then informed her of the full Miranda rights, and appellant signed a written form which waived these rights. Subsequently, she verified the statement which she had given that morning as true and correct. On March 21, 1972, the lower court denied appellant's motion to suppress the statements she made on the morning and afternoon of January 5, 1972. On March 27, 1973, the lower court, sitting without a jury, found appellant guilty of the crime charged. Appellant filed written post-verdict motions which specifically raised the contention that the lower court should have suppressed all her statements to the coroner and police. On April 26, 1974, the lower court sentenced appellant to a maximum two year term of imprisonment in a state institutional home and to pay the costs of prosecution. The lower court also granted a supersedeas on the sentence. This appeal followed. Appellant contends that the lower court should have suppressed the statement made on the morning of January 5, 1972, because the coroner failed to inform her fully of her rights against self-incrimination as required by Miranda v. Arizona, supra, and the Fifth Amendment to the United States Constitution. In Miranda, the United States Supreme Court promulgated the following rules pertaining to police interrogation of a suspect: ". . . The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.. . . As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any 340 statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any state of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." Supra at 444, 86 S.Ct. at 1612. (Emphasis supplied) (Footnote omitted). In the instant case, appellant did not receive any Miranda warnings prior to the questioning on the morning of January 5, 1972. Consequently, the crux of this case turns on whether appellant's statement that morning stemmed from custodial interrogation. To determine the parameters of the "custodial interrogation" which necessitates the procedural safeguards of Miranda, we must closely examine recent United States and Pennsylvania Supreme Court precedents. In Beckwith v. United States, 425 U.S. 341, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976), two special agents of the Internal Revenue Service, investigating possible criminal tax fraud, questioned Beckwith at his home for three hours. The agents did not inform Beckwith of the rights specified in Miranda and the suspect made compromising statements which the trial court refused to suppress. On appeal, the United States Supreme Court stated that "[a]lthough the `focus' of an investigation may indeed have been on Beckwith at the time of the interview in the sense that it was his tax liability which was under scrutiny, he hardly found himself in the custodial situation described by the Miranda court as the basis for its holding." 425 U.S. at 347, 96 S.Ct. at 1616. In short, Beckwith holds 341 that a primary suspect is not entitled to Miranda warnings unless some indicia of custody accompany the interrogation. Moreover, the Court rejected the petitioner's contention that the tax agents' request for an interview placed him in "psychological" and "functional" custody. Instead, the Beckwith court concentrated on the compulsion which inheres in incommunicado interrogation in a police-dominated atmosphere. For purposes of determining when the Miranda warnings must be given, the relevant compulsion stems not from the suspect's perceived need to attend a police-suggested interview, but from indicia of custody which lead a suspect to believe that the police will not release the interviewee until they have elicited a confession. The United States Supreme Court most recently considered the scope of "custodial interrogation" in Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). There, the owner of a burglarized house told a police officer that she suspected Mathiason. Mathiason was a parolee. The police officer went to the suspect's apartment and left a note which asked the suspect to call. When Mathiason contacted the officer, they arranged to meet at a state police office about two blocks from defendant's apartment. Upon Mathiason's arrival, the police officer took him to an office, closed the door, and told him that he was not under arrest. The officer then stated that the police believed Mathiason had committed the burglary because his fingerprints had been found at the scene of the crime. In fact, the officer lied; the police had not found Mathiason's fingerprints. After the officer advised the suspect that a district attorney or judge might favorably consider truthfulness, Mathiason confessed. The interview then terminated. However, instead of arresting Mathiason at that moment, the officer told Mathiason that he would refer the case to the District Attorney for a determination of whether to prosecute. The Supreme Court of Oregon concluded that Miranda warnings had been required because the questioning took place in a coercive environment. In a per curiam opinion, the United States Supreme Court disagreed and reversed. 342 The Court recognized that any interview between a suspect and a police officer carries coercive aspects. Nevertheless, the Court refused to require Miranda warnings "simply because the questioning takes place in the station house or because the questioned person is one whom the police suspect." 429 U.S. at 495, 97 S.Ct. at 714. In particular, the Court emphasized the following facts and conclusions: "In the present case, however, there is no indication that the questioning took place in a context where respondent's freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a one half-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody `or otherwise deprived of his freedom of action in any significant way.'" Id. Oregon v. Mathiason reinforces the central message of Beckwith v. United States: a court must objectively focus on the compulsion which emanates from a restriction on the suspect's freedom to leave an interview, not on the psychological compulsion which leads a suspect to participate in such an interview. The Pennsylvania Supreme Court has also attempted to define "custodial interrogation" in two recent cases. In Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977), the Supreme Court reversed a homicide conviction because the police conducted custodial interrogation without warning Brown of his constitutional rights. The Court observed that ". . . custodial interrogation does not require that the police make a formal arrest, nor that the police intend to make an arrest. [Commonwealth v. Fisher, 466 Pa. 216, 352 A.2d 26 (1976)]; Commonwealth v. O'Shea, [456 Pa. 288, 318 A.2d 713 (1974), cert. denied, 419 U.S. 1092, 96 S. Ct. 686, 42 L. Ed. 2d 685]; Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968). Rather, the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted." 473 Pa. at 570, 375 A.2d at 1264. See also Commonwealth v. Peters, 343 473 Pa. 72, 373 A.2d 1055 (1977) (plurality opinion). Applying this standard, the Court concluded that Brown had a reasonable belief that his freedom of action had been restricted when the police interrogated him on October 15, 1973. On the day before the October 15 interview, the police had questioned the suspect intermittently over a ten hour period in the police station. While the police told Brown at the outset of the first session that he was not under arrest, the police did not repeat this information the next day. Furthermore, on October 15, the questioning commenced at the suspect's place of employment, but subsequently shifted, at the demand of the police, to the station house so that Brown could "iron out discrepancies" between his account and statements given by another interviewee. Thus, the Court reasoned that under all the circumstances, the defendant could not have reasonably believed that his freedom remained unfettered when the police returned him to the police station on October 15.[5]See also Commonwealth v. Banks, 429 Pa. 53, 239 A.2d 416 (1968). Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977) represents the Supreme Court's most recent pronouncement on the scope of "custodial interrogation." In McLaughlin defendant, a federal program co-ordinator, received an administrative subpoena from the Office of the Philadelphia Comptroller requesting that he explain certain allegedly falsified expense vouchers. McLaughlin appeared at the comptroller's office where the First Deputy Comptroller questioned him under oath and without prior Miranda warnings. A stenographer recorded the interrogation. At the end of the session, McLaughlin left and the comptroller subsequently sent a report of the investigation to the Philadelphia District Attorney. A prosecution ensued. 344 The Supreme Court reversed the lower court's suppression order, which our Court had affirmed, 231 Pa.Super. 129, 332 A.2d 812 (1974), because it believed that the Deputy City Comptroller had no obligation to warn the defendant of his Miranda rights before the questioning started. First, the Court held that the questioning did not constitute "custodial interrogation" within the meaning contemplated by the Miranda court. The Court stated that "[i]n Pennsylvania, `custodial interrogation' has been interpreted to mean either questioning . . . `while in custody or while the object of an investigation of which he is the focus, . . .' Commonwealth v. Feldman, 432 Pa. 428, 432-33, 248 A.2d 1, 3 (1968). Commonwealth v. D'Nicuola, 448 Pa. 54, 57, 292 A.2d 333, 335 (1972)." 475 Pa. at 101, 379 A.2d at 1057 (Emphasis in original). However, the Court recognized that Beckwith v. United States, supra, eliminated any definition of "custodial interrogation" based solely on a defendant's status as primary suspect at the time of interrogation. In light of Beckwith, the Court re-examined prior Pennsylvania case law and concluded that "[i]n each case recognizing the defendant as the focus of an investigation, there was also present a degree of `deprivation of liberty' which the Beckwith Court found Miranda to require. Commonwealth v. D'Nicuola, supra; Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969); Commonwealth v. Jefferson, 432 Pa. 541, 226 A.2d 765 (1967)." 475 Pa. at 102, 379 A.2d at 1058. The Court did not mention the long line of cases, culminating in Commonwealth v. Brown, which had endorsed a definition of "custodial interrogation" based on a suspect's reasonable perception that his freedom of action has been restricted.[6] In conclusion, the Court held that under the Beckwith interpretation of Miranda, McLaughlin clearly was not "in custody" during this interrogation.[7] 345 By distilling the essence of these United States and Pennsylvania Supreme Court precedents, we conclude that the following guidelines govern the determination of when a "custodial interrogation" which triggers the need for Miranda warnings occurs. First, the mere fact that the police investigation has focused on a particular person will not require Miranda warnings before police interviews with that person. See Beckwith v. United States, supra; Commonwealth v. McLaughlin, supra. Second, if the police in fact place a person in custody or restrict his freedom in any significant way prior to, or during, the interview, then the interrogators must advise that person of his Miranda rights. Miranda v. Arizona, supra; Commonwealth v. Leaming, 432 Pa. 326, 247 A.2d 590 (1968); Commonwealth v. Moody, 429 Pa. 39, 239 A.2d 409 (1968), cert. denied, 393 U.S. 882, 89 S. Ct. 189, 21 L. Ed. 2d 157. Third, a suspect actually may be in custody even if the police have not taken him to a police station or formally arrested him.[8] Fourth, and this proposition is not without some doubt, "custodial interrogation" occurs when a suspect ". . . is placed in a situation in which he reasonably believes that his freedom of action of movement is restricted by such interrogation." Commonwealth v. Brown, supra, 473 Pa. at 570, 375 A.2d at 1264; Commonwealth v. Fisher, supra; Commonwealth v. O'Shea, supra; Commonwealth v. Romberger, 454 Pa. 279, 312 A.2d 353 (1973); Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971). While the Pennsylvania Supreme Court in McLaughlin, supra, did not advert to this reasonable belief 346 test, we refuse to believe that the Supreme Court meant to overrule, sub silentio, a long line of Pennsylvania cases approving this test. In McLaughlin, the Supreme Court merely decided that the status of primary focus of an investigation alone did not require the administration of Miranda warnings; the Court did not discuss exactly what extra elements were necessary before it would find "custodial interrogation." Indeed, it is clear that McLaughlin could not have had a reasonable belief that he was "in custody" and would not be released after the questioning. Also, the United States Supreme Court has not explicitly rejected a test predicated on a suspect's reasonable perception that his freedom has been restricted. The facts of Beckwith v. United States, supra, and Oregon v. Mathiason, supra, both reveal situations in which the interviewees could not have reasonably believed that the police had restricted their freedom of action. In Beckwith, the tax agents interviewed the suspect in the privacy of his home, they had not formally arrested the suspect, and they gave him no reason to suspect that he was not free to leave or terminate the interview. In Oregon v. Mathiason, supra, Mathiason helped to arrange the interview, the police officer expressly advised Mathiason that he was not under arrest, and Mathiason in fact left freely at the end of the interview. Accordingly, we conclude that neither the United States Supreme Court nor the Pennsylvania Supreme Court has foreclosed an objective reasonable belief test. We believe this test retains its validity. Commonwealth v. Brown, supra. When the police create a situation in which a person has a reasonable belief that he will be held incommunicado during and after the interview, then Miranda warnings are necessary to dispel the compulsion which inheres in this perceived involuntary and unlimited detention. Commonwealth v. Sites, 427 Pa. 486, 235 A.2d 387 (1967). We must now apply these four guidelines to the instant case. Initially, we note that a coroner in Pennsylvania has powers which in fact make him part of the Commonwealth's 347 criminal investigation team. 16 P.S. § 1237[9] authorizes a coroner to investigate suspicious deaths in order to determine whether there is sufficient evidence of criminal acts to justify the holding of an inquest. If the coroner conducts an inquest, 16 P.S. § 1245[10] confers power upon the coroner to issue subpoenas and attachments to obtain the attendance of witnesses and the production of documents. If the coroner concludes after an inquest that the death resulted from criminal conduct, he may act as a committing magistrate. See Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). Finally, 16 P.S. § 1242[11] directs the coroner, during the course of his investigation, to consult with the District Attorney. Given these statutory and common law powers, we will assume that a coroner investigating a suspicious death has the same status as a police officer investigating any suspected crime. In the case at bar, appellant was already the focus of the coroner's investigation; indeed, she was the only suspect. However, without some further indicia of an actual or a reasonably perceived restraint on appellant's freedom of action, Miranda warnings would not have been required. Beckwith v. United States, supra; Commonwealth v. McLaughlin, supra. Appellant concedes, as she must, that Coroner Jackson had not in fact restrained her freedom of action in any way; he did not place her under arrest or expressly indicate that she would be detained until she fully cooperated with his investigation.[12] Thus, we must determine whether appellant had a reasonable, even though erroneous belief that the coroner had restrained her freedom of 348 action. We conclude that appellant could not have had a reasonable belief that she had been detained by the coroner on the morning of January 5, 1972. First, appellant's prior contact with the coroner on January 3, had been brief, courteous, and exploratory in nature. At the end of this interview, appellant was free to go. Appellant voluntarily attended the second interview on the morning of January 5. Like the first session, this meeting was not protracted and appellant was in fact free to leave at the end. Commonwealth v. Brown, supra, stands in marked contrast: In Brown, the police had detained the suspect twice for prolonged periods of time; the police controlled the location and duration of the interview without any assent by the suspect. Therefore, Brown had a reasonable belief that the police continue to hold him incommunicado unless and until he co-operated with the questioning. (Contrast also Commonwealth v. Romberger, supra, and Commonwealth v. Marabel, supra, both cases in which the police detained suspects for questioning over prolonged periods of time.) In the instant case, the coroner informed appellant that he intended to recommend or initiate prosecution. At most, this representation allowed appellant to infer reasonably that further investigation and proceedings would follow. It cannot reasonably be construed as notification that the coroner had decided to arrest appellant at that very moment. In short, the coroner's conduct gave appellant no more reason to surmise that she had been placed in custody than the reason any other suspect has when being questioned during the course of a police investigation. Compare Commonwealth v. McLaughlin, supra, in which the Supreme Court held that a city comptroller's interview with a suspect, under the compulsion of a subpoena, did not constitute "custodial interrogation." See also Commonwealth v. Columbia Investors Corp., 457 Pa. 353, 325 A.2d 289 (1974). Any compulsion inherent in the coroner's questioning stemmed from appellant's perception that non-co-operation might not be viewed favorable rather than from a reasonable perception that appellant's liberty had in fact been restricted. Accordingly, we hold that the coroner's interview on the morning of 349 January 5, 1972, did not constitute "custodial interrogation" and, consequently, that Coroner Jackson was not required to give appellant Miranda warnings before questioning. The lower court properly admitted appellant's statements implicating her in the abuse and death of her child.[13] Therefore, we affirm the judgment of sentence. Judgment of sentence affirmed. WATKINS, former President Judge, did not participate in the consideration or decision of this case. PRICE, J., concurs in the result. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See discussion, infra. [2] Appellant made two inculpatory statements: one to the coroner on the morning of January 5, 1972, and one to the coroner, a police sergeant, and a county detective on the afternoon of January 5, 1972. Appellant challenges the admissibility of the first statement because the coroner failed to give Miranda warnings at the morning interview. We reject this claim. Appellant also contends that the afternoon statement, given after the coroner advised appellant of her Miranda rights, should have been suppressed because it was a fruit of the poisonous first admission. Because we have determined that the first admission was not obtained in violation of the federal constitution, the essential predicate, a poisonous tree, for appellant's second contention is missing. Accordingly, we reject appellant's second contention as well. [3] The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 2504. [4] U.S.Const. Amend. V provides, in pertinent part: "No person . . shall be compelled in any criminal case to be a witness against himself. . . ." [5] The Court distinguished Oregon v. Mathiason. In that case, the defendant voluntarily went to the police station by himself to participate in an interview the time and place of which he had helped to arrange. Moreover, the defendant implicated himself within five minutes of his arrival. In Brown, however, appellant was not given any option as to the time and place of questioning and police officers accompanied him to the station house. Furthermore, interrogation dragged on over a two day period. The Court did not discuss the application of Beckwith v. United States to Brown's situation. [6] We also note that the McLaughlin Court did not discuss the impact of Oregon v. Mathiason, on the meaning of "custodial interrogation." [7] The Court next discussed whether Article 1, Section 9 of the Pennsylvania Constitution afforded broader protection for McLaughlin than that provided by Miranda and the United States Constitution. The Court ruled that the Pennsylvania Constitution did not mandate Miranda warnings in non-criminal, administrative investigations. [8] Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969) (Miranda warnings required when four police officers arrested petitioner in his bed at 4:00 a.m.); Commonwealth v. Fisher, 466 Pa. 216, 352 A.2d 26 (1976) (Miranda warnings required when suspect interrogated in hospital room under police guard); Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968) (facts similar to those in Commonwealth v. Fisher); cf. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963) (An arrest may be accomplished by any action that indicates an intention to take a person into custody and to subject him to the actual control and will of the person making the arrest). [9] The Act of August 9, 1955, P.L. 323, § 1237. [10] The Act of August 9, 1955, supra. [11] The Act of August 9, 1955, supra. [12] Coroner Jackson did not have power to arrest appellant at this stage in the investigation. Commonwealth v. Sullivan and Commonwealth v. Lopinson, supra, require the initiation of a formal inquest proceeding before a coroner may exercise the power of arrest. An inquest proceeding had not been launched in the instant case. [13] Appellant has not contended that, considering all the circumstances, her statements to the coroner were elicited involuntarily in violation of federal and state due process guarantees. Because appellant did not specifically raise this issue in her application to suppress evidence, we are precluded from reaching it. See Pa.R.Crim.P. 323(d); 19 P.S. Appendix; Commonwealth v. McLaughlin, supra. We also note that appellant has not relied at any point on the protection of Article I, Section 9 of the Pennsylvania Constitution. In McLaughlin, our Supreme Court intimated that this state constitutional provision may encompass a higher standard of protection than the minimum standards of the federal constitution delineated in Beckwith v. United States and Oregon v. Mathiason. See, generally, Brennan, State Constitutions and The Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). We intimate no opinion as to the applicability of Article I, Section 9 of the Pennsylvania Constitution to the facts of the case at bar.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519735/	646 S.W.2d 586 (1983) Rosia Mae AUTRY, Appellant, v. Herman E. AUTRY, Appellee. No. 12-81-0056-CV. Court of Appeals of Texas, Tyler. January 20, 1983. 587 John E. Sherman, Jefferson, Sherman & Mims, Houston, for appellant. David T. Lopez, Houston, for appellee. McKAY, Justice. Appellant Rosia Mae Autry (Rosia) and Herman E. Autry (Herman) were divorced in Houston on June 25, 1975. During the marriage a minor child, Kimberly K. Autry, a girl, was born on June 1, 1969. Herman was ordered to make support payments of $200 per month. Although Herman has not filed a brief, it appears from the record that there have been many pleadings and many hearings on the issue of child support payments by Herman.[1] The transcript does not contain copies of all the previous proceedings. However, from the record we do have, it appears that a finding was made by the trial court at some point that Herman was in arrears for child support in the sum of $3,200. On November 7, 1980, Herman filed a Motion for Attorney's Fees, alleging that because of the many occasions that Rosia filed motions and other pleadings, it was necessary for him to employ counsel and appear in court, that he had incurred expenses for attorney's fees of more than $5,000, and currently had an outstanding balance of $3,000 which he was unable to pay. He asked the court to award him $4,000 in attorney's fees pursuant to § 11.18 a of the Texas Family Code. The hearing on this motion was originally set for January 7, 1981. Counsel for Rosia was given proper notice of this setting but failed to appear. The hearing was reset for January 14 and proper notice was again given to counsel for Rosia, who again, without notice, failed to appear. The hearing was set a third time for January 21. On January 20, 1981, Rosia filed a motion for recusal pursuant to Rule 18a, Tex.R.Civ.P., alleging that the trial court was biased against her and her attorney in that the court had been partial to Herman to the extent that Rosia had been denied due process of law. Judge Robert L. Lowry was the presiding judge, and he signed an order dated on January 21, 1981, setting a hearing at 10:30 A.M. on that date. Below the judge's signature on the same order there is the following in handwriting: Motion heard 1-29-81 Motion Denied Robert B. Baum The motion for attorney's fees was heard on February 4 and granted by judgment dated March 6. In Rosia's first point of error she maintains that the failure of the trial judge to recuse himself was an abuse of discretion and a denial of due process. The point is duplicitous but we will discuss the abuse of discretion issue. Rule 18a became effective on January 1, 1981, and provides that at least ten days before the date set for trial or other hearing in district court, any party may file a motion for recusal. When such a motion is properly filed, the judge shall either recuse himself or request the assignment of another judge to hear said motion. If the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment. It appears that only one opinion has been written on the issue here raised involving a motion for recusal of a trial judge since the effective date of Rule 18a.[2] In Limon v. State, 632 S.W.2d 812, 815 (Tex.App.-Houston [14th Dist.] 1982, P.D.R. ref'd), the Houston court held that the Rule requires a timely formal written notice before the mandatory provisions of Rule 18a concerning the hearing of such motions are triggered. In that case an oral motion was urged less than the required ten days before the hearing, and the trial judge failed to request the appointment of another district 588 judge to hear the motion. The trial judge simply denied the motion at the time it was presented. Holding as it did that a timely written motion was required, the Houston court found no reversible error in this procedure. We therefore hold that the failure of appellant to comply with the ten-day notice provision of Rule 18a(a) bars her complaint on appeal of the denial of said motion and overrule her first point of error.[3] Here the trial judge went further than the judge in Limon, for it appears that the motion was in fact heard and denied by a different judge. We must point out, however, that had the motion here been timely filed and presented, a reversal would be required under Rule 18a and these facts. There is nothing in the record to indicate that the trial judge complied with Rule 18a(d) by forwarding to the presiding judge of the administrative district an order of referral and the motion so that another judge could be assigned to hear the motion for recusal. All that appears in the record is an entry on the docket sheet and a notation on the order indicating that a different judge heard said motion. Where a mandatory duty is imposed by statute, the record must affirmatively reflect that all required steps were taken in order for this court to consider that duty properly discharged. Appellant's second point complains the trial court erred as a matter of law in awarding attorney's fees to counsel for Herman. Section 11.19 of the Family Code provides: (a) Appeals from orders, decrees, or judgments entered in suits affecting the parent-child relationship, when allowed under this section or under other provisions of law, shall be as in civil cases generally. (b) An appeal may be taken by any party to a suit affecting the parent-child relationship from an order, decree, or judgment: (1) entered under Chapter 13 of this code [§ 13.01 et seq.] (2) entered under Chapter 14 of this code appointing or refusing to appoint a managing conservator; appointing or refusing to appoint a possessory conservator; ordering or refusing to order payments for support of a child; or modifying any such order previously entered; [§ 14.01 et seq.] (3) entered under Chapter 15 of this code terminating or refusing to terminate the parent-child relationship; or appointing a managing conservator; [§ 15.01 et seq.] (4) entered under Chapter 16 of this code granting or refusing an adoption. [§ 16.01 et seq.] ... (Emphasis added.) The judgment in the instant case, according to the conclusions of law filed in conjunction therewith, was entered under § 11.18 of the Family Code, which provides in pertinent part: § 11.18 Costs (a) In any proceeding under this subtitle, the court may award costs as in other civil cases. Reasonable attorney's fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order for fees in his own name. The judgment itself provides in pertinent part: It is accordingly, ORDERED, ADJUDGED, and DECREED that the motion of Herman E. Autry for an award of attorney's fees as costs is granted, and that attorney's fees in the amount of $4,000.00 be, and they are hereby taxed as costs in these proceedings against Rosia Mae Autry, and judgment awarded to David T. Lopez, counsel for Herman E. Autry against the said Rosia Mae Autry *589 in the amount of $4,000.00, which judgment may be enforced in the name of David T. Lopez, and for which execution may issue as necessary for enforcement. It appears this judgment was rendered in a proceeding intended by all concerned to stand alone, independent of any and all prior proceedings. The fees awarded by this judgment were apparently meant to compensate Herman's attorney for many different appearances in many different proceedings. From the record before us we cannot view this judgment as ancillary to or connected with any particular prior order of the court under Chapters 13, 14, 15 or 16 of the Family Code. From the face of the judgment and the findings and conclusions filed therewith we conclude that it was entered solely under § 11.18. Since it was not rendered under any of the four chapters named in § 11.19, and since we have found no "other provisions of law" authorizing appeal from a judgment for costs alone, we hold that an appeal from this judgment is not authorized. This holding, however, should not be construed as an approval by this court of the judgment rendered below. Section 11.18(a) does not create a new cause of action for attorney's fees. The section provides that attorney's fees may be awarded as costs "[i]n any proceeding under this subtitle." Since we have concluded that § 11.18 of the Family Code does not, of itself, provide for an award of attorney's fees, it follows that the trial court was without authority to render the judgment awarding attorney's fees. That being true it becomes the duty of this court to reverse the judgment of the trial court and render judgment that appellee or his attorney take nothing under said judgment. Judgment reversed and rendered. NOTES [1] Autry v. Autry, 605 S.W.2d 625 (Tex.Civ.App.-Houston [1st Dist.] 1980). [2] There are two law review articles, 32 Baylor Law Review 489 (Pope and McConnico, 1980); 35 Southwestern Law Journal 381-2 (Figari, 1981), and an article in 43 Texas Bar Journal 1005 (Soules, 1980). [3] The only exception to the ten-day notice requirement of Rule 18a appears in section (e) which provides: (e) If within ten days of the date set for trial or other hearing a judge is assigned to a case, the motion shall be filed at the earliest practicable time prior to the commencement of the trial or other hearing. (Emphasis added.) However, under the facts set out in this opinion, this provision is clearly inapplicable.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519737/	253 Pa. Super. 386 (1978) 385 A.2d 392 ECUMENICAL ENTERPRISES, INC., Appellee, v. NADCO CONSTRUCTION, INC., Defendant, the Travelers Indemnity Company, and Smith Miller & Associates, a partnership, General Roofing & Insulation Company, Inc., Fidelity & Deposit of Maryland, a corporation, Gasparini Excavating Company, Inc. and United States Fidelity and Guaranty Company, Additional Defendants. Appeal of the TRAVELERS INDEMNITY COMPANY. Superior Court of Pennsylvania. Argued December 7, 1976. Decided April 13, 1978. 389 Philip Baskin, Pittsburgh, with him Jerome M. Libenson, Pittsburgh, for appellant. Jerry B. Chariton, Wilkes-Barre, for appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. CERCONE, Judge: This is an appeal from an order of the Court of Common Pleas of Luzerne County refusing to open a default judgment. Appellant, The Travelers Indemnity Company (hereafter Travelers), contends the lower court abused its discretion in declining to open the judgment. We agree and, therefore, reverse. On August 13, 1975, the plaintiff-appellee, Ecumenical Enterprises, Inc. (hereafter EEI), filed an action in assumpsit against NADCO Construction, Inc. (hereafter NADCO) and Travelers. The suit was predicated upon a contract for the construction of a housing complex in Wilkes-Barre.[1] Appellee's complaint was served upon NADCO on August 19, 1975, and upon Travelers on September 2, 1975. On the same day it was served NADCO forwarded a copy of the complaint to its counsel, Jerome M. Libenson, Esq., and advised him that it was presumed Travelers would agree to his representation of both parties. Attorney Libenson responded immediately by filing preliminary objections to the complaint.[2] Unfortunately, counsel neglected to enter an appearance on behalf of Travelers or specifically plead the same preliminary objections on Traveler's behalf. For various 390 reasons this serious oversight went unrecognized and, on October 7, 1975, a default judgment in the amount of $142,500.00 was entered against Travelers. A petition to open the judgment was filed two days after Travelers received notice of its entrance. Depositions in support of the petition were subsequently taken, and on February 23, 1976, the lower court entertained argument on the petition. At the time of argument, however, NADCO's preliminary objections, in which Travelers sought permission to join through its petition to open, were still pending before another judge in the lower court. The preliminary objections were later dismissed on April 2, 1976, following which an answer, new matter and counterclaim were filed by both NADCO and Travelers on April 20, 1976. By decision and order dated June 1, 1976, the lower court denied the petition to open on the grounds that Travelers failed to establish the existence of a meritorious defense to the complaint. Nevertheless, the court granted Travelers permission to apply for a rule to show cause why it should not be allowed to amend its petition strictly for the purpose of alleging as an additional reason for opening the judgment, that it was not for a sum certain and a trial should be conducted solely to assess the exact amount of damages.[3] Furthermore, Travelers filed a motion for stay; a motion for reconsideration to make new findings and conclusions; and a motion to clarify, amend or modify the decision. These motions were denied and this appeal ensued. It is fundamental that a petition to open a default judgment is an appeal to the court's equitable powers and, absent a clear abuse of discretion, the court's decision will not be disturbed. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Hersch v. Clapper, 232 Pa.Super. 550, 335 A.2d 738 (1975). Moreover, it is equally well-settled that in an assumpsit action a petition to open should not be granted 391 unless three conditions coalesce: (1) the petition has been filed promptly; (2) the default is reasonably explained; and (3) a meritorious defense is shown. Ruczynski v. Jesray Const. Corp., 457 Pa. 510, 326 A.2d 326 (1974); McCoy v. Public Acceptance Corp., supra; Jost v. Phoenixville Area School Dist., 237 Pa.Super. 153, 346 A.2d 333 (1975). Instantly, the court below concluded that although appellant's petition to open had been promptly filed, a meritorious defense had not been shown. In reaching this conclusion, the court noted that the petition to open, in relevant part, simply alleges the following: "8. Defendant, The Travelers Indemnity Company, has a meritorious defense to the Plaintiff's claim based upon the defenses of Nadco Construction, Inc., all of which are known to Plaintiff, the Plaintiff having sent copies of correspondence to this Defendant. Furthermore, Plaintiff will suffer no prejudice by having this judgment opened." We are in accord with the lower court's conclusion that the above allegation, standing alone, was insufficient for the purposes of demonstrating the existence of a meritorious defense since the facts underlying the defense were not averred. "It is clear that the petition to open must set forth its defenses `in precise, specific, clear and unmistaken terms.' Ab v. Continental Imports, 220 Pa.Super. 5, 9, 281 A.2d 646, 648 (1971), and must set forth the facts on which the defense is based. Young v. Matthews Trucking Corp., 383 Pa. 464, 119 A.2d 239 (1956)." Slott v. Triad Distributors, Inc., 230 Pa.Super. 545, 551, 327 A.2d 151, 154 (1974). The court below next reviewed the depositions to ascertain whether Travelers had any meritorious defenses to appellee's cause of action.[4] Once again, however, the court concluded that Travelers failed to demonstrate the existence 392 of a meritorious defense. It is with this latter conclusion that we disagree. Our review of the relevant testimony persuades us that Travelers has sufficiently posited a seemingly meritorious defense. Davis v. Safeguard Investment Co., 239 Pa.Super. 300, 361 A.2d 893 (1976). Examination of the record reveals that two of the deponents testified to the various defenses which would be employed if the judgment was opened and the case proceeded to a trial on the merits. In essence, these witnesses testified that the chief source of the disputes which spawned EEI's institution of litigation could be traced to the site selected for construction of the housing complex. Specifically, testimony was adduced that many of the problems were attributable to poor soil condition and water problems. Moreover, Travelers disclaimed any responsibility for these problems in view of the fact that they did not sell the land to EEI. The depositions also disclose Travelers' intention to defend on the basis of improper supervision of the project by the local architect and, in addition, EEI's failure to carry on certain maintenance functions. In addition, the testimony indicates several other defenses, such as: claims beyond the scope of the contract; design deficiencies, the existence of sub-contractors as additional defendants, and FHA certification of the work. Allegedly, all these defenses would be employed in the event of a trial on the merits. We are of the opinion that these depositions adequately supplemented the petition to open and established apparently valid defenses. As we have previously observed in Alexander v. Jesray Constr. Co.: "While we do not wish to understate the necessity of setting forth with sufficient specificity facts to constitute a meritorious defense, the lower court need not try the case on the merits when considering an equitable petition to open a default judgment. Cherry Steel Corp. v. Ashbourne Country Club, 227 Pa.Super. 433, 323 A.2d 231 (1974). Our review convinces us that the appellants have set forth an arguable meritorious defense sufficient to justify relief, if proven at trial." 237 Pa.Superior Ct. 99, at 104, 346 A.2d 566, at 569. 393 In sum, we conclude the lower court was unduly technical in holding that Travelers did not sufficiently establish the existence of a meritorious defense. One final matter remains for discussion. Because of its opinion that appellant failed to satisfy the meritorious defense requirement the lower court did not expressly reach the issue of whether appellant reasonably explained its failure to file a timely answer. The lower court's opinion does, however, state the reasons which appellant has advanced as an explanation for its failure to appear and answer. Given these circumstances we believe it proper and in the best interests of judicial time and economy to address this issue in the first instance ourselves. Briefly, Attorney Libenson explained that his failure to answer or file an appearance on behalf of Travelers was caused by pure inadvertence and an unintentional omission to act. Specifically, counsel stated that an oversight on his part occasioned his failure to specifically plead the preliminary objections on behalf of Travelers. Attorney Libenson further explained that because of continuing settlement negotiations between the parties and the fact that he was hospitalized and out of his office for a two week period prior to the entry of the default judgment his failure to specifically name Travelers as a party to the preliminary objections went undetected. He further testified that EEI's counsel, notwithstanding constant correspondence and communication between the attorneys, never advised him of his mistake nor of his intent to take a default judgment. Finally, the record reflects that Travelers had no reason to believe its interests were not being represented. "It is well settled that the power to open a default judgment entered as a result of mistake or oversight of counsel, is frequently exercised where the petition to open is promptly filed and a reasonable excuse for the default is presented." [Citations omitted.] Alexander v. Jesray Constr. Co., 237 Pa.Super. at 103, 346 A.2d 566. See also Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. 441, 368 A.2d 802 (1976). In the circumstances of this case, we 394 are convinced that the default judgment was entered solely as a result of an oversight by counsel and that this mistake or oversight was excusable. Accordingly, we find that Travelers' failure to timely defend has been reasonably explained. In the final analysis then, it is our opinion that Travelers has satisfied all three requirements necessary to open a default judgment and, therefore, the court below abused its discretion in denying the petition to open. In reaching this conclusion we are ever mindful of the principle that: "In determining whether a judgment by default should be opened, we must ascertain whether there are present any equitable considerations in the factual posture of the case which require that we grant to a defendant against whom the judgment has been entered an opportunity to have his `day in court' and to have the cause decided upon the merits. In so doing, we act as a court of conscience." Kraynick v. Hertz, 443 Pa. 105, 111, 277 A.2d 144, 147 (1971). It must also be recognized that the rules which authorize the entrance of a default judgment were designed to prevent a dilatory defendant from unreasonably thwarting the plaintiffs' efforts to establish a claim. Id. "The rules are not primarily intended to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation." Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. at 445, 368 A.2d at 804; Kraynick v. Hertz, supra. In the case at hand, the record is replete with "equitable considerations which impress the court with the need for relief." Ehnes v. Wagner, 388 Pa. 102, 104, 130 A.2d 171, 172 (1957). For example, if the default judgment were permitted to remain intact it is conceivable that Travelers (the surety), whose liability cannot exceed that of its principal (NADCO), East Crosswords Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865 (1965), would be faced with a money judgment of more than $140,000.00 after a trial establishes that its principal is not liable to the plaintiff. While this factor would not of itself compel relief, when it is considered in conjunction with plaintiff's failure *395 to give notice of its intent to take a default[5] and, most importantly, Travelers' reasonable compliance with the rules necessary for opening a judgment, we are of the view the court below abused its discretion in declining to open the judgment. Order reversed. WATKINS, former President Judge, did not participate in the consideration or decision of this case. NOTES [1] NADCO is the principal and Travelers the surety on various performance and payment bonds executed in connection with the construction contract. [2] The preliminary objections set forth the contention that the Court of Common Pleas lacked jurisdiction over the matter because the construction contract provided that binding arbitration would be the exclusive remedy for any disputes. It is noteworthy that on August 8, 1975, five days prior to EEI's institution of suit, NADCO had requested arbitration through the American Arbitration Association. [3] The record is silent as to the ultimate disposition of Travelers' amended petition which was filed on June 7, 1976. [4] The lower court opinion expresses some doubt as to the propriety of examining depositions to determine whether the petitioner has set forth a meritorious defense. We note that this practice is clearly appropriate. See Smith v. Dale, 405 Pa. 293, 175 A.2d 78 (1961); Minetola v. Samacicio, 399 Pa. 351, 160 A.2d 546 (1960); Fourtees Co. v. Sterling Equipment Corp., 242 Pa.Super. 199, 363 A.2d 1229 (1976). [5] Although the rules do not require a plaintiff to give notice of his intent to seek a default judgment, we have recently noted that this factor should be considered in ruling on a petition to open. See e.g., Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. at 445, n. 2, 368 A.2d at 805, n. 2 and cases cited therein. Indeed, we are certain that had Travelers' oversight been called to its attention by such notice, the problem would have been obviated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519758/	39 Md. App. 206 (1978) 385 A.2d 90 JAMES CHESTER PHIPPS v. STATE OF MARYLAND. No. 875, September Term, 1977. Court of Special Appeals of Maryland. Decided April 13, 1978. 207 The cause was argued before GILBERT, C.J., and MASON and LISS, JJ. John L. Calhoun, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant. Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Edwin H.W. Harlan, Jr., State's Attorney for Harford County, on the brief, for appellee. GILBERT, C.J., delivered the opinion of the Court. The Constitution of the United States is not an antiquated historical document, something that pertained to our forefathers but of little or no current significance. It is the viable foundation upon which our country was built and still lives. Aside from its being the cornerstone of the nation, perhaps its greatest virtue is its malleability, the ingredient which permits the Constitution to be molded to conform to contemporary standards, rather than being a rigid ancient mandate out of step with the times. The then Governor of New York, Franklin D. Roosevelt, in a radio address on March 2, 1930, observed that the "Constitution has proved itself the most marvellously elastic compilation of rules of government ever written." In the instant case, we are asked by the appellant, James Chester Phipps, to declare that in the light of present societal standards the sentence of life imprisonment for the crime of rape in the first degree is a "cruel and unusual punishment," debarred by the Eighth Amendment. Disclaiming knowledge of violating Md. Ann. Code art. 27, §§ 462 (first degree rape), 463 (second degree rape), 464 (first 208 degree sexual offense), 464A (second degree sexual offense), 464B (third degree sexual offense), 464C (fourth degree sexual offense), 553 (sodomy), 337 (kidnapping), 486 (robbery), 341 (larceny of goods of the value of less than $100.00), and 467 (receiving stolen goods of the value of less than $100.00), and common law assault and battery, because of his alleged intoxication, the appellant entered an Alford[1] plea in the Circuit Court for Harford County of guilty to the charge of first degree rape. Judge Albert Close explained to Phipps, in almost laborious detail, the rights that are waived by such a plea, as well as the fact that the penalty that could be imposed for the crime was life imprisonment. After satisfying himself that there was a factual basis for the plea, Judge Close accepted it. The State then, as it had agreed to do in a plea bargain, nolle prossed the remaining ten (10) counts of the indictment. After obtaining a pre-sentence investigation, the court, on March 18, 1977, imposed a sentence of life imprisonment upon Phipps. The judge recommended that therapy for Phipps be provided by the Division of Correction.[2] Within a week, Phipps wrote a letter to the trial judge in which he said in part: "Please be informed of my right to recant my plea of Guilty to the charge of Rape. My right's were infringed upon from the day of my arrest wich i can prove." Judge Close treated the letter as a petition for post conviction review. A hearing on the matter was held before Judge Brodnax Cameron, Jr. Phipps set out thirteen (13) supposed errors, none of which had any substance, and his assigned counsel raised the additional issue of the constitutionality vel non of the imposition of a life sentence for the offense of first degree 209 rape. Judge Cameron held that the punishment of life imprisonment for the crime of first degree rape is not unconstitutional, and he denied post conviction relief. We granted leave to appeal and transferred the case to the regular docket. In this Court, Phipps reiterated his attack on the constitutionality of Md. Ann. Code art. 27, § 462 (b) as applied to himself. He wove into his argument a "but for" contention which points out that absent certain highly relevant testimony the offense would have been that of second degree rape punishable by a maximum term of twenty (20) years imprisonment. We shall deal first with the interlarded "but for." The record reveals that the victim said that Phipps demanded that she yield to his sexual advances, posed to her in rather explicit, earthy language. When she declined, he exclaimed, "Don't make me hurt the baby don't make me have to hurt the baby." His reference was to the three (3) year old daughter of the prosecutrix who clung to her breast while the prosecutrix was ravished by Phipps. Section 462, concerned with first degree rape, provides in pertinent part: "(a) What constitutes. A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person and: (1) With another person by force or threat of force against the will and without the consent of the other person and: ... (iii) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury ...."[[3]] (Emphasis supplied.) 210 The gravamen of the offense in the instant case is the very threat that Phipps would like to read out of the record so as to reduce the charge to second degree rape. The implied threat of Phipps to harm his victim's infant child is what caused her to submit to him and is the very element which placed the sexual attack within the ambit of Section 462 (a) (1) (iii). Moreover, the victim testified that to her the threat meant that Phipps was going to "Beat us. Kill us. I didn't ask."[4] In Crenshaw v. State, 13 Md. App. 361, 373, 283 A.2d 423, 430 (1971), cert. denied, 264 Md. 746 (1972), we held that a mother's instinct for the safety of her child together with her rapist's threats to harm the child if the victim did not surrender to his illicit sexual advances constituted force and coercion. Crenshaw was decided under a prior statute relative to rape. What we said in Crenshaw, however, applies to the later Article 27, § 462 (a) (1) (iii). The appellant's "but for" contention is the same as arguing that "but for" the negative tone of the Ten Commandments all the acts therein condemned would be permissible. The fact remains that the acts forbidden by the Ten Commandments are not sanctioned. No amount of "supposing" or analyzing of hypothetical evidence will eradicate the positive testimony of the victim and reduce the offense to anything other than that to which the appellant pled guilty. Phipps's constitutional assault on the Maryland statute commences with the Eighth Amendment which proscribes "cruel and unusual punishments." That prohibition is, of course, applicable to the States as well as to the federal government. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962); Bigley v. Warden, 16 Md. 211 App. 1, 294 A.2d 141 (1972). A similar proscription is included in the Maryland Declaration of Rights, Articles 16[5] and 25.[6] The historical background of the phrase "cruel and unusual punishment" was discussed by the Supreme Court of the United States in Gregg v. Georgia, 428 U.S. 153, 169-71, 96 S. Ct. 2909, 2923-24, 49 L. Ed. 2d 859, 872-73 (1976). The Court said: "The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, `Nor Cruel and Unusual Punishments Inflicted:' The Original Meaning, 57 Calif. L. Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. The American draftsmen,[[7]] who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing `tortures' and other `barbarous' methods of punishment.' [sic] Id., at 842. [Footnote omitted.] ... But the Court has not confined the prohibition embodied in the Eighth Amendment to `barbarous' methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The 212 Court early recognized that `a principle to be vital must be capable of wider application than the mischief which gave it birth.' Weems v. United States, 217 U.S. 349, 373 [30 S. Ct. 544, 551, 54 L. Ed. 793, 801] (1910). Thus the Clause forbidding `cruel and unusual' punishments `is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.' Id., at 378 [30 S.Ct. at 553, 54 L.Ed. at 803]. See also Furman v. Georgia, 408 U.S., at 429-430 [92 S.Ct. at 2823-24, 33 L.Ed.2d at 459-60] (Powell, J., dissenting); Trop v. Dulles, 356 U.S. 86, 100-101 [78 S. Ct. 590, 597-98, 2 L. Ed. 2d 630, 642-43] (1958) (plurality opinion)." Subsequently, the Court, in Coker v. Georgia, 433 U.S. at 592, 97 S.Ct. at 2865, 53 L.Ed.2d at 989, opined: "[T]he Eighth Amendment bars not only those punishments that are `barbaric' but also those that are `excessive' in relation to the crime committed. Under Gregg, a punishment is `excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground." The Court, speaking through Mr. Justice White, went on to say that the evaluation of a sentence must be based on objective factors, rather than the subjective views of individual judges. Id. Public attitudes, reflected by the legislative determination of punishment of a particular criminal offense, are also a material consideration in the court's function of ascertaining whether a punishment is condemned to crossing the River Styx into constitutionally mandated oblivion. "To this end, attention must be given to the public attitudes concerning a particular sentence history 213 and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted." Id. at 592, 97 S.Ct. at 2866, 53 L.Ed.2d at 989. The statute under attack in the case sub judice is but one part of the General Assembly's recognition of the existence of different degrees of rape with prescribed corresponding punishment. The validity of legislatively determined punishment is presumed, Gregg v. Georgia, 428 U.S. at 175, 96 S.Ct. at 2926, 49 L.Ed.2d at 876, and courts "may not require" that "a democratically elected legislature" enact the least severe possible penalty as the sanction for a crime. As long as the punishment that is decreed conforms "with the basic concept of human dignity," 428 U.S. at 182, 96 S.Ct. at 2929, 49 L.Ed.2d at 880, and is neither "cruelly inhumane [n]or disproportionate," 428 U.S. at 175, 96 S.Ct. at 2926, 49 L.Ed.2d at 876, to the offense, there is no violation of the Eighth Amendment, Gregg v. Georgia, supra, nor of the Maryland Declaration of Rights, Articles 16 and 25. When the judgment of the people, handed down through their duly elected State Senators and Delegates in the form of a statute, is subjected to assault, a "heavy burden" is borne by the attacker. Gregg v. Georgia, 428 U.S. at 175, 96 S.Ct. at 2926, 49 L.Ed.2d at 876. Mr. Justice Stewart penned in Gregg v. Georgia, 428 U.S. at 175-76, 96 S.Ct. at 2926, 49 L.Ed.2d at 876: "This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. `[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.' Furman v. Georgia... [408 U.S. at 383, 92 S.Ct. at 2800-01, 33 L.Ed.2d at 432 (1972)] (Burger, C.J., dissenting). The deference we owe to the decisions of the state legislatures under our federal system, id., at 465-470 214 [92 S.Ct. at 2841-44, 33 L.Ed.2d at 480-83] (Rehnquist, J., dissenting), is enhanced where the specification of punishments is concerned, for `these are peculiarly questions of legislative policy.' Gore v. United States, 357 U.S. 386, 393 [78 S. Ct. 1280, 1284-85, 2 L. Ed. 2d 1405, 1410] (1958). Cf. Robinson v. California, 370 U.S., at 664-665 [82 S.Ct. at 1419-20, 8 L.Ed.2d at 758 (1962)]; Trop v. Dulles, 356 U.S., at 103 [78 S.Ct. at 599, 2 L.Ed.2d at 643-44 (1958)] (plurality opinion); In re Kemmler, 136 U.S., at 447 [10 S.Ct. at 938, 34 L. Ed. at 524 (1880)]. Caution is necessary lest this Court become, `under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility ... throughout the country.' Powell v. Texas, 392 U.S. 514, 533 [88 S. Ct. 2145, 2154-55, 20 L. Ed. 2d 1245, 1267-68] (1968). A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. See Furman v. Georgia, supra, at 461-462 [92 S.Ct. at 2839-40, 33 L.Ed.2d at 477-78] (Powell, J., dissenting). Phipps avers that he "is serving an unconstitutional and excessive sentence based on the two-pronged test applied in Coker [v. Georgia, supra]." We have an entirely different view. We think that a sentence of life imprisonment for the crime of first degree rape is a "reasonable contribution to acceptable goals of punishment."[8] The life sentence may only 215 be imposed when an accused has been found guilty of employing the most reprehensible of methods in carrying out the heinous offense of vaginal intercourse against his victim's will. Those most reprehensible methods include 1) the use of a dangerous or deadly weapon, or an article believed by the victim to be such a weapon; 2) serious physical injury which could result in the death of the victim; 3) threats of imminent injury to the victim or persons known (and obviously connected by a bond of affection) to the victim; and 4) when the accused is aided by another person in the rape of the victim. Md. Ann. Code art. 27, § 462. When the basic elements of imminent peril to the life of the victim or her loved ones is removed or there is no third-person aider or abetter in the crime, it is reduced in seriousness and in punishment to a maximum of twenty (20) years imprisonment. Md. Ann. Code art. 27, § 463. The legislatively mandated penalty of confinement "for not more than the period of his natural life" represents the will of the people of Maryland that its female citizens be protected in their persons from violation. Recognizing that mere words, printed in a Code of Criminal Laws, will not, in and of themselves, cause a cessation of rape any more than the Ten Commandments have halted sin, the General Assembly has determined that those who so violate the victim, also violate § 462. While "`[r]etribution is no longer the dominant objective of the criminal law,' Williams v. New York, 337 U.S. 241, 248 [69 S. Ct. 1079, 1084, 93 L. Ed. 1337, 1343] (1949)," it is neither "a forbidden objective nor one inconsistent with 216 our respect for the dignity of men." Gregg v. Georgia, 428 U.S. at 183, 96 S.Ct. at 2930, 49 L.Ed.2d at 880. Paraphrasing Mr. Justice Stewart in Gregg, the General Assembly articulated the will of the people of Maryland that life imprisonment is the appropriate peine forte et dure[9] for the grievous affront to its feminine populace. We hold that the imposition of a life sentence for a violation of Md. Ann. Code art. 27, § 462, rape in the first degree, is constitutionally permissible. Judgment affirmed. Costs to be paid by appellant. NOTES [1] See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), which sanctions such pleas. One usually enters a guilty plea to a charge, notwithstanding protestations of innocence, in order to avoid prosecution on other charges or evade more severe penalties. [2] Phipps avers that he has received no therapy. [3] Section 462 was amended by 1977 Md. Laws, ch. 2920. Subsection (iii) is now subsection (3). There were no substantive changes. [4] There was additional evidence from the prosecutrix that the appellant told her that he "had been involved in many incidents in the past in which drinking was involved in which there was some fighting and so forth, but never this kind of behavior. There was no history of in particular sexual deviations or that sort of thing." [5] Article 16 provides: "That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter." [6] Article 25 states in slightly different language: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law." [7] The "American draftsman" was Representative (later President of the United States) James Madison. See Bernard Schwartz, The American Heritage History of the Law in America, ch. II (1974). See also Baker v. State, 39 Md. App. 133, 383 A.2d 698 (1978). [8] A review of the Codes of several States indicates that a life sentence is permissible in twenty-five (25) of them and the District of Columbia, including: Alabama, 1977 Ala. Acts No. 607, § 2310 (2) punishable under § 1225(1)(a); Arizona, Ariz. Rev.Stat. § 13-614; Arkansas, Ark. Stat. Ann. § 41-1803 punishable under § 41-901; District of Columbia, D.C. Code § 22-2801; Florida, Fla. Stat. Ann. § 794.011 (West); Idaho, Code § 18-6104; Illinois, Ill. Ann. Stat. Ch. 38, § 11-1c punishable under Ch. 38, § 1005-8-1 (Smith-Hurd); Iowa, Iowa Code Ann. § 902.1 et seq. (West); Kentucky, Ky. Rev. Stat. § 510.040(2) punishable under § 532.060(2)(a); Louisiana, La. Rev. Stat. Ann. § 14:42 (West); Massachusetts, Mass. Ann. Laws ch. 265, § 22 (Michie/Law. Co-op); Michigan, Mich. Comp. Laws Ann. § 750.520b; Mississippi, Miss. Code Ann. § 97-3-65(1) and § 97-3-65(2); Missouri, Mo. Rev. Stat. § 559.260; Nevada, 1977 Nev. Laws ch. 598, § 3; New Mexico, N.M. Stat. Ann. § 40A-9-21A punishable under § 40A-29-3A; North Carolina, N.C. Gen. Stat. § 14-21(1) and § 14-21(2); Ohio, Ohio Rev. Code Ann. § 2907.02(B) (Anderson); Oklahoma, Okla. Stat. tit. 21, § 1115; Rhode Island, R.I. Gen. Laws § 11-37-1; Tennessee, Tenn. Code Ann. § 39-3702; Texas, Tex. Penal Code Ann. tit. 5, § 2103 (Vernon); Utah, Utah Code Ann. § 76-53-18(a); Virginia, Va. Code § 18.2-61; Washington, Wash. Rev. Code Ann. § 9.79.170(2); Wyoming. Wyo. Stat. § 6-63(A). [9] "strong and severe punishment."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519782/	76 N.J. 46 (1978) 385 A.2d 234 IN THE MATTER OF JOSEPH P. DI SABATO, JUDGE OF THE MUNICIPAL COURT OF THE BOROUGH OF EAST NEWARK, COUNTY OF HUDSON. The Supreme Court of New Jersey. Argued March 7, 1978. Decided April 27, 1978. Mr. Paul G. Levy, Assistant Attorney General, argued the cause for designated counsel (Mr. John J. Degnan, Attorney General of New Jersey, designated counsel). Respondent argued pro se. 47 PER CURIAM. This matter involves proceedings for removal of a municipal judge by the Supreme Court under N.J.S.A. 2A:1B-1 et seq. and R. 2:14-1. A Superior Court Judge apprised the Advisory Committee on Judicial Conduct that respondent, a Municipal Court Judge of East Newark, Hudson County, had appeared as an attorney on behalf of a litigant in a municipal court proceeding in another county and had filed a Notice of Appeal from the determination of the municipal court. The Committee, pursuant to R. 2:15-1 et seq., after a preliminary review, held a hearing at which the respondent appeared, represented himself in the matter, and testified on his own behalf. After a consideration of the evidence, the Committee recommended the institution of formal proceedings to the end that respondent be reprimanded, and suspended from judicial office for a period of six months. Upon receipt of the Committee's Presentment and Recommendation, this Court caused a complaint to be filed and issued an order to show cause why respondent should not be removed from office and requiring the filing of an answer within 30 days. R. 2:14-2. The order to show cause designated the Attorney General or his representative to prosecute the matter, N.J.S.A. 2A:1B-4, before a three judge panel appointed by this Court. A hearing was held before the panel on November 22, 1977. At the conclusion of the hearing, the panel made the following findings of fact, essentially all of which are undisputed. On May 8, 1976 defendant Dennis M. Di Sabato (hereinafter defendant), son of respondent, was issued a summons for speeding in the Borough of Madison, Morris County, New Jersey. On June 17, 1976 defendant appeared on his own behalf in Madison Borough Municipal Court and entered a plea of guilty to the summons. The municipal judge imposed a fine of $31, court costs of $15 and revoked defendant's license for a period of 30 days. 48 Subsequently, as a result of a telephone call by respondent to the Madison Borough Municipal Court explaining that defendant had not realized that he might lose his license by pleading guilty, the case was reopened. On August 26, 1976 a not guilty plea was entered and the matter was tried with respondent appearing as attorney for his son. Respondent has been a member of the Bar of this State since 1949. On May 15, 1973 he was appointed a Judge of the Municipal Court of East Newark, Hudson County, New Jersey, an office he has held continuously since that date. At no time, however, did respondent advise the Madison municipal court judge that he too was a municipal court judge, nor was the Madison municipal court judge aware at the time of respondent's status as a municipal court judge. Respondent participated fully in the proceedings before the Madison Borough Municipal Court, including cross-examination of the State's witness, and legal argument before the court. At the conclusion of the trial, a verdict of guilty was found by the municipal court and the original sentence was reimposed. Thereafter, the respondent filed an appeal along with the requisite Certification of Timely Filing and Service of Notice of Appeal to the Morris County Court. While the appeal was pending, the Madison municipal judge happened to see respondent at a conference of State municipal judges and, for the first time, realized that he was a municipal judge. The Madison municipal judge immediately advised his Assignment Judge that respondent had appeared in his court representing the defendant in a quasi-criminal proceeding and had filed an appeal from the decision which was currently pending in the Morris County Court. On October 19, 1976, the Assignment Judge of Morris County wrote to respondent apprising him of the fact that R. 1:15-1(c) prohibited him from appearing in any criminal or quasi-criminal matter and advised respondent to direct his client to obtain other representation. Respondent thereafter obtained other representation for defendant. 49 Rule 1:15-1(c) provides as follows: (c) Judges of Municipal Courts. An attorney who is a judge or acting judge of a municipal court shall not practice in any criminal, quasi-criminal or penal matter, whether judicial or administrative in nature, except to perform the official duties of a municipal attorney of another municipality. Nor shall he act as attorney for the municipality or any of the municipalities wherein he is serving or as attorney for any agency or officer thereof; nor practice before the governing body or any agency or officer thereof; nor be associated in the practice of law, either as partner, employer, employee or office associate, with an attorney who is a member of such governing body. Respondent does not deny that he appeared in municipal court on behalf of his son. He now recognizes that it was improper for him to do so. However, in mitigation of his conduct, he contends that he was motivated to appear not as an attorney, but as a father concerned for the welfare of his son. To underscore this fact, respondent emphasizes that he did not receive a fee for his services, that he did not attempt to use the power and prestige of his judicial office to influence the outcome of the proceedings and that, while serving as a municipal judge, he has never appeared in any other criminal or quasi-criminal proceeding. It is clear that by appearing in municipal court in this matter the respondent violated R. 1:15-1(c). Moreover, his actions violated Canon 2 of the Code of Judicial Conduct which requires judges to avoid the appearance of impropriety. While respondent's conduct cannot be condoned, we believe that, under the circumstances, his actions do not warrant removal or suspension from judicial office. Respondent did not attempt to use the power or prestige of his office to influence the outcome of the proceedings. Although it in no way excuses his improper conduct, we are also mindful of respondent's evident concern for his son and his previously unblemished record. Under the circumstances censure is appropriate discipline. Respondent is hereby censured. 50 For censure Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER and Judge CONFORD. 6. Opposed None.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519810/	646 S.W.2d 570 (1982) Henry J.N. TAUB, et al., Appellants, v. V.R.T. KAHN, et vir., Appellees. No. 01-82-0080-CV. Court of Appeals of Texas, Houston (1st Dist.). December 30, 1982. Rehearing Denied January 27, 1983. 571 W. Robert Brown and John Taub, Houston, for appellants. Lee Kaplan and Fletcher Etheridge, Houston, for appellees. Before WARREN, PRICE and DOYLE, JJ. OPINION DOYLE, Justice. This is an appeal from an order partitioning certain real property, designated as the West Belt property, jointly owned by the appellants and the appellees. On December 27, 1979, the district court entered its preliminary decree of partition and appointment of commissioners, pursuant to Rule 761, Texas Rules of Civil Procedure.[1] The preliminary decree set forth the respective partition shares for each party, and appointed three commissioners to make the partition in accordance with the decree. No appeal was taken from such preliminary decree. On October 30, 1980, the three commissioners filed their commissioners' report, pursuant to Rule 769, in which they stated their partition was "a fair, equal, just and impartial division of the property to the ownership interest." Thereafter, on November 9, 1981, a court-ordered title opinion regarding the property was filed, such opinion having been previously submitted to all parties prior to its filing. On November 16, 1981, the appellants filed their objections to the commissioners' report, as authorized under Rule 771. In their objections, the appellants argued, inter alia, that the commissioners' report failed to effect a partition of the property, as required by Rules 766 and 768, and that they disagreed with the ownership percentages and certain assumptions made by the commissioners. The appellants requested that the court refer the matter back to the commissioners with specific instructions on partition and ownership, or, in the alternative, that the court reject the commissioners' report and appoint new commissioners to partition the property. On January 4, 1982, the district court signed an order entitled Order on Objections to Title Opinion and Report of Commissioners, ordering the commissioners to effect partition in accordance with enumerated instructions and directives set forth in the order. Under Rule 760, the court is to determine the share or interest of each owner or claimant, including all questions of law or equity affecting the title to the land which may arise. Then, prior to entering a partition decree, the court is to determine whether the property is susceptible to partition, and, under Rule 761, it is directed to: enter a decree directing the partition of such real estate, describing the same, to be made in accordance with the respective shares or interests of each of such parties entitled thereto, specifying on such decree the share of interest of each party, and shall appoint three or more competent and disinterested persons as commissioners to make such partition in accordance with such decree and the law... After the commissioners are appointed, they are directed under Rule 766 to proceed to partition the real estate in accordance with the directions contained in the court's decree. We have concluded that Rule 760 controls the disposition of this appeal. That Rule provides as follows: Upon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise. As the parties have not appealed from the first decree, matters determined therein 572 cannot here be reviewed, and the parties are thus bound by it. Yoast v. Yoast, 620 S.W.2d 223, 228 (Tex.Civ.App.-Tyler 1981, no writ). The appellant's objections had included a request that the district court not approve the commissioners' report and that it be sent back to them with instructions to partition, with directives. This the court did, and the appellant now contends, as his sole point of error, that this violated Texas Rules of Civil Procedure and improperly invaded the province of the commissioners. By a reading of the applicable rules and the decision in Yoast, supra, it seems clear that the court's first decree determines the mathematical ownership, while the second decree, in conjunction with the commissioners' report, allocates to the respective parties actual, tangible shares or tracts of the particular land. The appellant's contention is that (1) the order violates the procedural system set up by the rules, and (2) the order invaded the commissioners' decision-making authority set up by the rules. As we have previously stated, no complaint has been made regarding to the preliminary decree, nor can a complaint now be asserted. As has been shown, upon filing of objections to the commissioners' report, a trial on the issues is then had. If the report is found to be erroneous in any material aspect, or unequal and unjust, then the court will reject the report and appoint new commissioners. Rule 771. The appellant asserts the trial court committed reversible error merely because it referred the matter back to the same commissioners with instructions to complete the report according to directives that were not in the preliminary decree. No case has been cited, nor has any been found, suggesting or holding this to be reversible error. As Rule 771 outlines, new commissioners are to be appointed upon trial of the objection issues where the trier of fact finds material error, inequality or injustice by the commissioners' report. The burden of proving such matters is upon the party attacking the impropriety of the report. Vestal v. Jackson, 598 S.W.2d 724 (Tex.Civ.App.-Waco, 1980, no writ). No docket sheet or statement of facts appears in the record reflecting any "trial of the issues" or findings of material error, inequality or injustice in the commissioners' report. The appellant does not raise any claim of substantive error in either the decrees or the report. As we interpret Rule 760, the trial court has the power and duty to determine the equities and to adjust them according to the circumstances of the case. Here the court had rejected the commissioners' report because it did not effect a partition; it then returned the matter to them with specific instructions that would effect a partition by disposing of items on which the parties had been unable to agree after ten years of litigation. A trial court has continuing jurisdiction to enter new orders as the necessity arises in partition suits. See Pffeffer v. Meissner, 286 S.W.2d 241 (Tex. Civ.App.-Galveston 1955, writ ref'd n.r.e.). The appellants have not presented or raised any argument or evidence of harm caused to them by the trial court's actions, and none would appear; nor have they raised an issue or appeal regarding any substantive matter in any decree. Thus, no reversible error is shown. Rule 434, T.R. C.P. As to the appellant's argument that the order "invaded the province of the commissioners," Rule 766 requires the commissioners to effect partition in accordance with the court's instructions. The court's directions did not mandate the commissioners to partition any parcel or tract to any particular person or in any particular manner, and its order did not unduly restrict the duties of the commissioners in effecting the partition. Accordingly, the trial court's Order on Objections is affirmed. NOTES [1] All references to rules are to Texas Rules of Civil Procedure unless otherwise indicated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519822/	646 S.W.2d 684 (1983) 278 Ark. 406 Mildred M. ALEXANDER et al., Appellants, v. FIRST NATIONAL BANK OF FORT SMITH, Appellee. No. 82-207. Supreme Court of Arkansas. February 21, 1983. Rehearing Denied March 28, 1983. 685 Thomas S. Stone, Little Rock, and Edward B. Helms, Oklahoma City, Okl., for appellants. Rose Law Firm by W. Dane Clay, Little Rock, for appellee. ADKISSON, Chief Justice. This is the third appeal arising from the will of Fred Alexander, in which he left one-half of this estate to his widow, Mildred, with the residue in trust for his two children, Mary and Caruth II, with Mildred as trustee. Caruth II died, and his widow sued Mildred for an accounting on behalf of her son Caruth III who was a beneficiary of the trust. On the first appeal we removed Mildred as executrix and remanded for a full and final accounting of the estate. Alexander, Ex'x v. Alexander, Ex'x, 262 Ark. 612, 561 S.W.2d 59 (1978). The second appeal resulted when Mildred filed her own purported full and final accounting and the 686 Executor in Succession, the First National Bank of Fort Smith, filed its own accounting. The trial court approved the Bank's accounting, but deferred action on the various claims for attorney's and executor's fees. Mildred appealed the trial court's approval of the Bank's accounting, and we affirmed in Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). During the second appeal, after notice of appeal was filed in the trial court but before the record was filed in this Court, the trial court held a hearing on the various claims for attorney's and executor's fees. The following awards were made which are the subject of this appeal: $7,000 to the First National Bank of Fort Smith as Executor in Succession $17,176 to Mr. W. Dane Clay as attorney for the Executor in Succession for his work from May 26, 1978June 5, 1981 $30,540 to Mr. W. Dane Clay for his work for Caruth III from 1970May of 1978, one-half to be paid by the widow and her daughter. Appellants first argue that the trial court was without jurisdiction to award attorney's fees since at the time of the award the notice of appeal had been filed. However, we stated in Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958) that the trial court retains jurisdiction of the case until the record is filed and the appeal is docketed. This had not yet been done in this case when the award was made. Furthermore, matters that are collateral or supplemental to the trial court's judgment are left within the trial court's jurisdiction even though an appeal has been docketed. Bleidt v. 555, Inc., 253 Ark. 348, 485 S.W.2d 721 (1972). Here, the award of attorney's and executor's fees was collateral to the appeal from the trial court's decision to uphold the Bank's accounting. Appellants next argue that the probate court's judgment as to a $30,570.00 attorney's fee awarded to Mr. Clay should be reversed because the ruling made from the bench by the trial judge at the June 22, hearing as to the fee is inconsistent with his actual order concerning the fee. At the hearing, the following exchange took place: The Court: All right. I divided your claim in half. I am considering the duplicity and all of the other matters, so that you are entitled to Fifteen Thousand Two Hundred Eighty Five Dollars ($15,285.00) in that connection for recovery of assets for the trust and for the estate, and I am surcharging that one-half against Mildred Alexander, and one-half against Mary Mildred Alexander. Mr. Clay: All right. What you are saying is the total fee allowed is only one-half of what I asked for? The Court: The total fee is ... $15,285.00... However, the trial court's order in this regard filed July 8, 1981, states: ... That considering all of the facts and circumstances made known to the Court herein, the fees and expenses claimed in this connection by Mr. Clay as attorney in the amount of $30,570.00 are found to be reasonable and should be allowed. That however only one-half of this sum or the amount of $15,285.00 would be surcharged to Mrs. Mildred Alexander and her daughter, Miss Mildred Alexander, jointly or severally, for which judgment should be granted against these parties and such interest as may be distributed to them from decedent's estate herein. That in so doing the Court recognizes that Mr. Clay's services were necessary and were effective to protect the interest of the residual heir and beneficiary Caruth Alexander, III; and also of benefit indirectly to the estates of Caruth Alexander and Dorothy Alexander. That therefore the other one-half of the requested fees and expenses to be surcharged, i.e. $15,285.00, should be charged to or received from Caruth Alexander, III, beneficiary of both his parents' estates. The pronouncement from the bench made at the June 22, 1981, hearing is inexplicably different from the other which was later entered on July 8, 1981. The court *687 apparently changed its mind after its pronouncement from the bench following the June 22, hearing. In such instances we note the court may change an order entered by it. Rule 60. A.R.Civ.P., Vol. 3A Ark. Stat.Ann. (Repl.1979); Ark.Stat.Ann. § 62-2015 (Repl.1971). We have no alternative but to accept the court's last order regarding this matter, there being no showing of mistake or fraud and, therefore, affirm the award of $30,570.00 attorney's fees. Appellants further argue that the trial court erred in surcharging $15,285.00 in attorney's fees to them, because the will specified that expenses for administration be paid out of the residuary one-half of the estate. We cannot fully agree with this contention. At one time Mildred was the personal representative of the estate and as such was liable and chargeable for losses to the estate resulting from neglectful or willful breaches of duty in regard to the administration of the estate. Ark.Stat.Ann. § 62-2801 (Repl.1971). The probate court specifically found that "Mrs. Mildred Alexander did breach her fiduciary duty, and did intentionally neglect her duties as personal representative...." Therefore, the probate court did not err in surcharging her; however, it was error to surcharge Mary Alexander, a mere beneficiary, there being no authority for such action. Therefore, Mildred Alexander is liable for the total assessment of $15,285.00 under the court's order holding appellants jointly and severally liable. Appellants contend that the probate court erred in awarding First National Bank of Fort Smith an executor's fee of $7,000. This fee was based primarily on approximately $100,000 which the estate received for flood easements and approximately $42,000 from farm rentals. Appellant alleges that since appellant had the absolute power to dispose of personal property under our ruling in Alexander, Ex'x v. Alexander, Ex'x, 262 Ark. 612, 561 S.W.2d 59 (1978), the money should not have gone to the Bank in the first place, and therefore the trial court erred in basing the executor's fee on this amount. We cannot agree with this contention. We approved in Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982), the Bank's final accounting, which included the amounts received as floodage easements and farm rentals. The amounts in question passed through the Bank's hands; therefore, it was not error for the Bank to recover its fee based upon these amounts. Ark. Stat.Ann. § 62-2208 (Supp.1981). Appellants also argue that Mr. Clay is entitled to no compensation because he represented Caruth III while he was also appointed by the court to represent the Executor in Succession. We cannot agree with this contention. The record reflects that Mr. Clay represented Caruth III from 1970 through May 1978, and then represented the Executor in Succession from May 26, 1978, until the present time. As attorney for the executor in succession, he represented the interests of the estate and thus necessarily represented the interests of Caruth III to the extent that he was a beneficiary of the estate. Appellants' argument that an attorney employed by the personal representative must look to the personal representative for payment is also without merit. Ark.Stat.Ann. § 62-2208 (Supp.1981) specifically authorizes the personal representative to employ legal counsel and contemplates that counsel's fee will be paid by the estate. Finally, appellants argue that the will created a residuary trust and that the probate court erroneously awarded attorney's fees which were related to the trust since trust matters are within the jurisdiction of the chancery court. This argument is without merit. Here, the residuary trust does not come into existence until the estate is closed. Until then no trust is created and jurisdiction remains in probate. Affirmed in part, reversed in part.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519814/	477 Pa. 562 (1978) 385 A.2d 338 COMMONWEALTH of Pennsylvania v. John HEATHERINGTON, Appellant. Supreme Court of Pennsylvania. Argued March 8, 1977. Decided April 28, 1978. 563 564 Gary B. Zimmerman, Rossetti & Zimmerman, Pittsburgh, for appellant. Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee. Before EAGEN, C.J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. OPINION NIX, Justice. This is an appeal from a judgment of sentence entered upon a jury verdict convicting appellant of voluntary manslaughter under the 1972 Crimes Code.[1] 18 Pa.C.S.A. § 2503 (1973). The dispositive issue is whether the trial court erred in refusing defense counsel's request to instruct the jury that where the defense of self-defense, 18 Pa.C.S.A. § 505 (1973), is raised by the evidence at trial, the Commonwealth bears the burden of proving beyond a reasonable doubt that the killing was not committed in self-defense. In its opinion disposing of the issues raised in written post-trial motions, the lower court concluded that it did not err by refusing to so instruct the jury. We disagree and therefore reverse the judgment of sentence and order a new trial. 565 A review of the record discloses the following facts. Appellant was the manager of a bar owned by his father in McKeesport, Pennsylvania. Appellant lived in an apartment above the bar. On the evening of March 30, 1975, the victim and appellant were seated at the bar engaged in a discussion. At about 12:45 a.m. on March 31, 1975, appellant told the barmaid that he intended to retire soon for the night and asked her to serve everyone a complimentary drink for Easter. By this time, the victim, who was a long-time friend of appellant, and the appellant had become embroiled in an argument. At about 1:00 a.m., appellant got up from the bar to leave and walked toward the back of the barroom in the direction of the stairs which lead to his upstairs apartment. The victim shouted, "Nobody walks away from me when I'm talking," and proceeded to follow appellant with his arms outstretched toward appellant. The victim had no weapons or objects in his hands. Although appellant testified that the victim grabbed him from behind around the neck and threatened to kill him, other eyewitnesses testified that they were unable to observe the victim's hands, either because of the witnesses' angle of observation or because the size of the victim (six feet one inch tall, weighing two hundred and ninety pounds) obscured their view of his hands. No witness other than appellant testified as to any physical contact between the victim and appellant immediately prior to the killing. Upon being accosted by the victim, appellant pulled a handgun from his right coat pocket and shot the victim twice, killing him. Appellant testified that because of robbery threats he carried the handgun at closing time. The record shows that during the course of the evening, appellant had ingested at least four mixed drinks, and the victim had drunk at least ten bourbons on the rocks. The victim had a reputation for violence, especially when inebriated, and this reputation was known to the appellant.[2] 566 In Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975), this Court ruled that our review of the sufficiency of the evidence to support a voluntary manslaughter conviction must be conducted under the standard that when evidence at trial indicates the defense of self-defense, the burden is on the Commonwealth to prove beyond a reasonable doubt that the killing was not in self-defense. In so holding, this Court, in Cropper, concluded that this allocation of the burden of proof was compelled by the 1972 Crimes Code. Id. 463 Pa. at 536-38, 345 A.2d at 648-49; see Commonwealth v. Lesher, 473 Pa. 141, 147, 373 A.2d 1088, 1091 (1977). In the instant case, the trial court's instructions to the jury were given prior to our decision in Cropper. Because defense counsel at trial correctly called to the court's attention the fact that Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974) (holding that where intoxication is a defense, prosecution must prove beyond a reasonable doubt that defendant did not lack requisite intent), cast some doubt on the validity of instructing the jury that the defendant bore the burden of proving self-defense,[3]see Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970), the trial judge recognized this uncertainty and deliberately did not instruct the jury as to the burden of proof on the issue of self-defense.[4] Reviewing the entire charge, as we must, Commonwealth v. Brown, 467 Pa. 512, 519, 359 A.2d 393, 397 (1976), we find the following instructions relating to burden of proof:[5] I have stated to you at the very beginning that the Commonwealth must prove its case in each and every 567 element of the charges against the accused beyond a reasonable doubt. ..... Therefore, the Commonwealth has the burden of proof. And it's a burden of proof that never shifts from the Commonwealth. The Commonwealth always has it. The Commonwealth must prove its case beyond a reasonable doubt. It is required to prove its case and every material portion of it by this test. ..... And the third possible verdict that you may have here is that the accused is not guilty of either the first count of murder in the third degree or of voluntary manslaughter, by reason of what you may determine, either that the Commonwealth has not established all of the essential elements, or that if the Commonwealth did establish it, the claim of self-defense in this case, you find is warranted. In the trial court's opinion on post-trial motions, which opinion was written with the benefit of our Cropper decision, the trial court reasoned that Cropper did not overrule Winebrenner because in Cropper the question of what was the correct jury instruction on self-defense had not been properly preserved for appellate review. Although the lower court was correct that the jury instruction question was waived in Cropper, Commonwealth v. Cropper, supra, 463 Pa. at 535-36, 345 A.2d at 648, in conducting the sufficiency review in Cropper this Court held that henceforth the burden was on the prosecution to disprove self-defense beyond a reasonable doubt. Id. 463 Pa. at 537-38, 345 A.2d at 649. It is immaterial that this change of the burden of proof was announced in the context of a sufficiency analysis rather than in a discussion of the appropriate jury instruction. The change of the burden would necessarily require an alteration of the former instruction on self-defense. The 568 controlling question in the instant case is whether the jury charge did conform with Cropper.[6] The 1972 Crimes Code, see 18 Pa.C.S.A. §§ 2501, 2502 (1973 & Supp. 1977-78), perpetuated the traditional distinction between murder and voluntary manslaughter. This distinction is that voluntary manslaughter is an intentional killing committed without malice, whereas malice is an essential element of murder. Commonwealth v. O'Searo, 466 Pa. 224, 240, n. 6, 352 A.2d 30, 38, n. 6 (1976). In a prosecution for murder, evidence of provocation or self-defense tends to negate the malice required to prove murder. See Commonwealth v. Robinson, 452 Pa. 316, 323, 305 A.2d 354, 357 (1973). Thus, we think that Cropper requires a trial court to instruct the jury so as to convey the following concepts: (1) That in order to prove murder, the prosecution must prove beyond a reasonable doubt that the killing was malicious; (2) That evidence of self-defense, from whatever source, tends to negate the malice required for murder; (3) That in order to meet its burden of proof on the element of malice, the prosecution must exclude self-defense beyond a reasonable doubt. While a trial court is free to use its own language in instructing the jury, Commonwealth v. Lesher, supra, 473 Pa. at 147, 373 A.2d at 1091, whatever language is used must explain accurately the above-described relationship between evidence of self-defense and the essential element of malice in a murder prosecution. In short, the jury must be fully aware that the finding of malice requires the exclusion of the defense of self-defense. As shown by the quoted excerpts of the trial judge's instruction in the instant case, the jury received no 569 specific instructions explaining the relationship between evidence of self-defense and the element of malice. The trial court reasoned that by not placing any burden on the appellant to establish any element, the court avoided any conflict with the Cropper decision. Similarly, the Commonwealth urges strongly that the court's deliberate placement of the burden on the Commonwealth to prove all of the elements of the crime throughout the charge eliminates the necessity to specifically instruct the jury with reference to the burden of the respective parties as to the evidence relating to self-defense. Both the trial court and the Commonwealth in their reasoning assume that the affirmative placement of the burden of proving the material elements of the crime upon the Commonwealth necessarily conveys to the jury that this requires that the Commonwealth disprove the presence of self-defense beyond a reasonable doubt. This assumption is unwarranted, particularly in light of the language which was used in the instant charge, wherein the trial court stated: And the third possible verdict that you may have here is that the accused is not guilty of either the first count of murder in the third degree or of voluntary manslaughter, by reason of what you may determine, either that the Commonwealth has not established all of the essential elements, or that if the Commonwealth did establish it, the claim of self-defense in this case, you find is warranted. (Emphasis added). The italicized portion of the above excerpt suggested to the jury that even if the Commonwealth proved all material elements of murder, including malice, a claim of self-defense, if believed by the jury, would result in acquittal. Not only does this language fail to explain the relationship between malice and evidence of self-defense, it indicates that both malice and self-defense may be legally established in a murder prosecution, when in fact the two are mutually exclusive. This instruction and the concept it conveys is contrary to our understanding of how the rule announced in 570 Cropper must be explained to the jury. Therefore, we hold that the trial court's burden of proof instruction was erroneous.[7] Finally, because there was a factual dispute as to whether the victim actually throttled appellant from behind before the shooting, a dispute going to the reasonableness of appellant's asserted belief that his life was in danger, we cannot say that the trial judge's failure to instruct in accordance with Cropper could not have contributed to the verdict. Thus, the error is not harmless. Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978). Accordingly, the judgment of sentence is reversed and a new trial is ordered. EAGEN, C.J., and O'BRIEN, J., concur in the result. NOTES [1] This Court's jurisdiction is based upon section 202(1) of the Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.202(1) (Supp. 1977-78). [2] We have reviewed the evidence and find it sufficient to support the verdict. [3] In fact this Court recently noted that Rose did overrule Winebrenner on this point. Commonwealth v. Lynch, 477 Pa. 390, 393, 383 A.2d 1263, 1264 (1978). [4] In the instant case the trial judge stated on the record: "I do not wish to jeopardize this case on a possible erroneous instruction, and I, therefore, purposely have not made mention of what is required to be proved." [5] The charge to the jury took up more than eighty pages of printed record. The quoted excerpts of this charge fairly represent the trial judge's instruction on burden of proof. [6] The application of the Cropper decision to the instant factual situation does not raise a question of retroactivity. Cropper made clear that it was not announcing a rule pursuant to the court's supervisory powers, but was rather applying a legislative mandate required by the Crimes Code of 1972. Since the instant criminal episode is governed by the 1972 statute, the burden of proof required the 1972 Crimes Code relating to self-defense is also applicable. Additionally, a majority of this Court held in Commonwealth v. Lynch, supra, that the Cropper holding was also mandated by the federal constitution. [7] This writer has had occasion to comment upon the importance of jury instructions on the standard to be employed in determining guilt or innocence. Nothing is more basic to the adjudicatory process than the standard to be employed by the finder of fact in the determination of guilt or innocence. Where the standard employed is so completely contradictory as to render it unintelligible, the fact finder is left without guidance and due process is offended. Commonwealth v. Rose, 457 Pa. 380, 397, 321 A.2d 880, 888 (Nix, J., concurring). Although this writer's concern in Rose was prompted by the confusion created by imposing a burden of proof on both prosecutor and defendant as to the issue of intoxication, id. 457 Pa. at 396, 321 A.2d at 887-88, it is also applicable in the instant case where the trial judge failed to provide the jury with any standard to apply to the issue of self-defense, thus leaving the jury without legal guidance on an issue over which there was a bona fide factual dispute.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519817/	464 F. Supp. 643 (1979) Samuel WENZER and Helen Wenzer v. CONSOLIDATED RAIL CORPORATION and R. T. Fox. Civ. A. No. 78-1264. United States District Court, E. D. Pennsylvania. January 25, 1979. 644 Joseph Lurie, Philadelphia, Pa., for plaintiffs. John J. Runzer, Philadelphia, Pa., for defendants. MEMORANDUM AND ORDER BECHTLE, District Judge. Presently before the Court are the motions of defendants Consolidated Rail Corporation ("Conrail") and R. T. Fox ("Fox") to dismiss for lack of jurisdiction over the subject matter, pursuant to Fed.R.Civ.P. 12(b)(1), and to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the motions to dismiss for lack of jurisdiction over the subject matter will be granted as to Counts I and II of the amended complaint and the motions to dismiss for failure to state a claim upon which relief can be granted will be granted as to Counts III, IV, V and VI of the amended complaint (hereinafter referred to as "complaint"). Plaintiffs Samuel and Helen Wenzer ("the Wenzers") instituted the instant suit against Conrail, Mr. Wenzer's employer, and Fox, the Vice President and Treasurer of Conrail, alleging actionable injuries arising out of adjustments in Mr. Wenzer's employment status. Mr. Wenzer was employed in the position of "Assistant Director Damage Prevention," earning $28,544 per year, until May 9, 1977. During the first five months of 1977, various persons in Mr. Wenzer's department, including Mr. Wenzer himself, were being investigated for malfeasance. Based upon this course of investigation, several of Mr. Wenzer's co-workers and associates were discharged on grounds of malfeasance. On May 9, 1977, allegedly on the basis of the same investigation, Mr. Wenzer was placed on "surplus" status, which is a statutorily created position mandated by the employee protection provisions of the Regional Rail Reorganization Act of 1973. 45 U.S.C. § 701, et seq. (hereinafter referred to as "Rail Act of 1973"). While on surplus status, Mr. Wenzer was entitled to receive, and did receive, $21,744 per year and was not required to perform any services for Conrail. After receiving these benefits for approximately nine months, Mr. Wenzer was reassigned to active status in a position paying $18,600 per year. Pursuant to the statutory 645 scheme, he received a "displacement allowance" sufficient to provide him with total compensation equal to the amount he received while on surplus status. Id., at § 775(b). Thus, Mr. Wenzer earned $18,600 and was awarded an additional $3,174 per year. The Wenzers brought suit in this Court, alleging jurisdiction under 28 U.S.C. §§ 1331 and 1337 and alleging diversity of citizenship and an amount in controversy in excess of $10,000, exclusive of costs and interest, pursuant to 28 U.S.C. § 1332(a). In Counts I and II of the complaint, the Wenzers allege that Mr. Wenzer is entitled to the highest position available commensurate with his ability and experience; that subchapter V of the Rail Act of 1973 imposes a duty upon Conrail to provide him with such a position; and, that an actionable breach of such duty occurred when Mr. Wenzer was placed on surplus status. In Counts III, IV and V, the Wenzers allege that Conrail is so closely identified with the United States Government that the acts of Conrail and its agents are to be considered "federal action" for the purposes of the First and Fifth Amendments. In Count III, the Wenzers allege that the defendants deprived Mr. Wenzer of his alleged statutory entitlement to the highest available position without due process of law, in violation of the Fifth Amendment. In Count IV, the Wenzers allege that the defendants deprived Mr. Wenzer of certain liberty interests in his good reputation by placing him on surplus status at the conclusion of the investigation, in violation of his Fifth Amendment right to due process of law. In Count V, the Wenzers allege that the defendants placed Mr. Wenzer on surplus status because of his association with certain disciplined co-workers and that, by doing so, they violated his rights of association as guaranteed by the First Amendment. In Count VI, the Wenzers allege that the actions of Conrail and Fox were intentional and wanton and caused extreme mental and emotional distress. By way of relief, the Wenzers demand money damages, as well as the reinstatement of Mr. Wenzer at the highest position available commensurate with his ability. The defendants move to dismiss the statutory counts (Counts I and II) on the ground, inter alia, that the Court has no jurisdiction over the subject matter, because Congress created the exclusive remedy of arbitration for all disputes arising out of the employee protection scheme of the Rail Act of 1973. Secondly, defendants move to dismiss all counts for failure to state a claim upon which relief can be granted. Statutory Claims (Counts I and II) The Rail Act of 1973 was enacted to effectuate the reorganization and consolidation of bankrupt railroads in the Midwest and Northeast and to help channel fresh capital into the system. 45 U.S.C. § 701(b). Title V of the Rail Act, which was codified as subchapter V, Id., at § 771, et seq., pertains to employee protection and is a comprehensive scheme to reduce the impact of the reorganization of the railroads on employees. S.Rep. No. 93-601, 93rd Cong., 1st Sess. (1973); 1973 U.S.Code Cong. & Admin.News, pp. 3242, 3258. The Wenzers claim that Mr. Wenzer is entitled to the highest level of employment available, commensurate with his abilities, pursuant to § 772 of Subchapter V. In opposition, the defendants argue that there is no statutory entitlement to such a position and that, in any event, this controversy is subject to the exclusive remedy of arbitration, as specified in § 775(i)(2), and that, therefore, this Court lacks subject matter jurisdiction to entertain plaintiffs' claims. The plaintiffs respond by arguing that § 775(i)(2) does not apply to this controversy and, even if it does, it is not mandatory. It is well settled that, when Congress creates a right, it can establish an exclusive remedy for the enforcement of that right. Tutun v. United States, 270 U.S. 568, 579, 46 S. Ct. 425, 70 L. Ed. 738 (1926); United States v. Babcock, 250 U.S. 328, 331, 39 S. Ct. 464, 63 L. Ed. 1011 (1919). Expressed in other terms, the specification of one remedy as exclusive necessarily excludes 646 another. Switchmen's Union v. National Mediation Bd., 320 U.S. 297, 301, 64 S. Ct. 95, 88 L. Ed. 61 (1943). This principle was explained in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1973), where the Supreme Court said: It has been held that "where a statute creates a right and provides a special remedy, that remedy is exclusive." And "Congress for reasons of its own decided upon the method for the protection of the `right' which it created. It selected the precise machinery and fashioned the tool which it deemed suited to that end. . . ." Id., at 18, 94 S.Ct. at 1037-1038 (citations omitted). Plaintiffs do not oppose this principle but only oppose its applicability to the facts of this case. The arbitration clause of Subchapter V provides: If any dispute arises between the Corporation and a noncontract employee regarding the interpretation or application of any provision of this subchapter, the Corporation shall establish a resolution procedure with arbitration as the final step. Such resolution procedure shall be the exclusive means available to the parties for resolving such dispute, and any arbitration decision rendered shall be final and binding on all parties. Either party may request arbitration, and the cost and expenses of such arbitration shall be shared equally by the parties. 45 U.S.C. § 775(i)(2) (emphasis supplied). Plaintiffs argue that the language of § 775(i)(2) applies to some disputes, but not to all, and that disputes like the case at hand are in the category of disputes not subject to the section. The Court notes that Counts I and II allege a breach of Conrail's duty under 45 U.S.C. § 772(b). The Court also notes that § 772(b) is found within the same subchapter as the arbitration section. On the basis of the clear language of § 775(i)(2), we hold that a dispute arising out of § 772(b) is subject to the arbitration requirements of § 775(i)(2). Plaintiffs argue, in the alternative, that the arbitration provision is neither mandatory nor exclusive, but is simply an alternate remedy to be chosen by the employee if he deems it advantageous. In support of this seeming circumvention of the plain language of the statute, plaintiffs cite a committee report which states: Any disputes regarding the interpretation of these provisions may be submitted to arbitration and the costs of said arbitration shall be shared equally by the Carrier and the employee. S.Rep. No. 94-499, 94th Cong. (1976); 1976 U.S.Code Cong. & Admin.News, pp. 14, 113. However, it is clear that this report refers to an amendment to the Rail Act of 1973, which is no longer in force in its original form. As originally enacted, the Rail Act of 1973 did not contain an arbitration provision in its employee protection plan. The Railroad Revitalization and Regulatory Act of 1976 was enacted on February 5, 1976, and amended the Rail Act of 1973 by adding the following language to § 775: If any dispute arises between the Corporation and a noncontract employee regarding the interpretation or application of any provision of this title, the Corporation shall establish a resolution procedure with arbitration as the final step. Either party may request arbitration, and the cost and expenses of such arbitration shall be shared equally by the parties. 45 U.S.C. § 775(i)(2) (amended October 19, 1976). The language of this amendment, read in light of its legislative history as cited by the plaintiffs, would appear not to furnish a mandatory procedure. However, on October 19, 1976, Congress enacted the Rail Transportation Improvement Act of 1976, which amended § 775(i)(2) by adding, after the first sentence, the following language: Such resolution procedure shall be the exclusive means available to the parties for resolving such dispute, and any arbitration decision rendered shall be final and binding on all parties. Rail Transportation Improvement Act of 1976, P.L. 94-555, 90 Stat. 2623 (amending 45 U.S.C. § 775(i)(2) (emphasis supplied)). The legislative reports pertaining to this 647 amendment reinforce our conclusion that the remedy of arbitration is exclusive for all disputes arising out of the employee protection scheme. See S.Rep. No. 94-851, 94th Cong., 2nd Sess. (1976); 1976 U.S.Code Cong. & Admin.News, pp. 5837, 5865. We hold, therefore, that, since plaintiffs have purported to allege a breach of a duty to promote under 45 U.S.C. § 771, et seq., and since Congress has created an exclusive remedy for such a dispute, this Court has no subject matter jurisdiction over Counts I and II of the complaint. Constitutional Claims (Counts III, IV and V) The Wenzers allege that the actions of Conrail deprived Mr. Wenzer of certain property and liberty interests without due process of law as guaranteed by the Fifth Amendment, and that the same actions violated certain associational rights inherent in the First Amendment. To sustain these claims, it is axiomatic that the plaintiffs must show that the defendants' actions are the actions, in effect, of the federal government, since the First and Fifth Amendments only purport to restrict "federal action." Public Utilities Com'n v. Pollak, 343 U.S. 451, 72 S. Ct. 813, 96 L. Ed. 1068 (1952); Junior Chamber of Commerce v. Missouri State Junior Chamber of Commerce, 508 F.2d 1031 (5th Cir. 1975). To this end, the plaintiffs allege that "the federal government has so insinuated itself into a position of interdependence with Conrail" that the actions of Conrail and Fox are to be considered the acts of the federal government. The Court notes that the plaintiffs are not alleging that the actions of Congress or of the federal government in general form the basis for their cause of action but, rather, that the personnel decisions of Conrail and Fox have deprived the Wenzers of their statutory and constitutional rights. Thus, the Court must determine whether the acts of the defendants are to be construed as being the acts of the federal government because of its extensive funding and regulation of Conrail. The complaint alleges, in pertinent part, the following: Conrail is a private for-profit corporation but its creation was mandated by Congress under the Regional Rail Reorganization Act, 45 U.C. 741 [sic]. Conrail is a highly regulated enterprise whose purpose is to serve the public and U.S. national needs. The establishment of Conrail and its continued existence is made possible by massive federal contributions and loans running into the hundreds of millions of dollars. On information and belief, the plaintiff alleges that more than 50% of Conrail's indebtedness is presently owed to the United States government and the Congress has authorized up to $350,000,000 of such loans. All "A" preferred stock in Conrail is owned by the U.S. Railway Association, a non-profit government corporation established under 45 USC 711 of the Act. Additionally, Congress has mandated an Employee Protection program under Title V of the Act, 45 USC 771 et seq. Under this Employee Protection program so-called "protected employees," such as the plaintiff, are entitled to displacement allowances, payments when they are placed in surplus or in positions paying less than their eligible displacement allowances. All displacement allowances are paid to protected employees, such as the plaintiff, by Conrail but Conrail is fully reimbursed out of the Treasure [sic] of the United States up to an aggregate of $250,000,000, 45 USC 779. Complaint, ¶ 32. The standards utilized to find federal action, necessary to sustain a claim under the Constitution, have been held to be identical to those employed to detect "state action." Geneva-Towers Tenants Organization v. Federated Mortgage Investors, 504 F.2d 483 (9th Cir. 1974). The Third Circuit recently outlined the analysis to be undertaken in determining whether the requisite state action is present in Chalfont v. Wilmington Institute, 574 F.2d 739 (3d Cir. 1978) (en banc). First, pursuant to the formulation articulated in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 648 S.Ct. 856, 6 L. Ed. 2d 45 (1974), we must determine whether the state has "so far insinuated itself into a position of interdependence with the [defendant] that it must be recognized as a joint participant in the challenged activity." Id., at 725, 81 S.Ct. at 862. Then, if no state action is found, Chalfont, supra, at 746, the Court must examine the status of the defendant in light of the test formulated in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974), that: [State action will be found] whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Id., at 351, 95 S.Ct. at 453. The plaintiffs argue that they have satisfied the federal action requirement under either formulation. We disagree and find that, reading the pleadings in light of the legislative facts, the plaintiffs have failed to state a claim upon which relief can be granted.[1] In support of their claim that they have satisfied the Burton formulation, the plaintiffs seek to rely on Chalfont where the Third Circuit found "state action" in the policies and acts of a public library system. In reaching that conclusion, the court stressed that the system received 90% of its operating revenues from tax sources. Chalfont, supra, at 745. Local governmental entities which contributed to the funding were represented on the system's Board of Managers by local elected officials, who served on the Board in their ex officio capacities. Id. In addition, the system enjoyed tax-exempt status and employment contracts with library employees designated the employer as an agent of the government in furnishing public services. Id. Lastly, the organizational structure and management of the library was mandated by the state legislature and, most importantly, as in Burton, the library was located on City-owned property pursuant to a perpetual, rent-free lease. Id. We find that the funding of Conrail by the United States Government through the purchase of Conrail securities by the United States Railway Association does not reach the level of "almost complete physical and financial interdependence" that existed between the "private" defendant and the state in Burton. Hodge v. Paoli Memorial Hospital, 433 F. Supp. 281 (E.D.Pa.1977). On the contrary, the involvement of the federal government in the case at bar is distinguishable on numerous grounds from the facts of Chalfont. Conrail, though it receives capital from the United States Railway Association, received capital in a totally different form than the yearly grants in Chalfont, and the funding does not reach the 90% level found in Chalfont. The financing of Conrail is in the form of "loans" and "investments" in Conrail debentures and Series A Preferred Stock. See 45 U.S.C. §§ 721(a), 726(a), (b). Interest is required on debt at the prevailing market rate or at the current yield rate of United States Railway Association Obligations, Id., at § 721(c), and it is the stated policy of Congress that it intends to be repaid. Id., at § 721(f). This policy is manifested by various reporting and auditing provisions. See Id., at §§ 721(a), (b), 741(h). Furthermore, unlike the library in Chalfont, Conrail does not enjoy tax-exempt status but is a for-profit corporation formed under the laws of the Commonwealth of Pennsylvania. Id., at § 741(b). In addition, Congress explicitly stated that Conrail "shall not be an agency or instrumentality of the Federal Government" in Conrail's implementing legislation. Id. The plaintiffs argue that the representation of the United States Railway Association on the Board of Directors of Conrail brings Conrail under the control of the federal government. First, while it is true 649 that six of the thirteen Directors of Conrail are designated by the United States Railway Association, Id., at § 741(d)(1)(A), this representation will be in effect only as long as the obligations of Conrail held by the Railway Association constitute 50% or more of Conrail's total indebtedness. Id., at § 742. Second, unlike the ex officio board members in Chalfont, the six Directors serve on the Board of a for-profit corporation and owe a fiduciary duty, under the laws of the Commonwealth of Pennsylvania, to the corporation and shareholders. The Supreme Court recently examined the related question of whether conveyances of rail properties to Conrail in return for Conrail stock was an exercise of the power of eminent domain in the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S. Ct. 335, 42 L. Ed. 2d 320 (1974). The Court found that it did not need to determine whether compensation in the form of securities would be sufficient as an exercise of the eminent domain power for several reasons: First, it is contended that despite the express provision of § 301(b) that Conrail "shall not be an agency or instrumentality of the Federal Government," 45 U.S.C. § 741(b) (1970 ed., Supp. III), federal participation through federally appointed members of the board of directors constitutes Conrail a federal instrumentality. From that premise the contention proceeds that the conveyance is an exercise of eminent domain. But Conrail is not a federal instrumentality by reason of the federal representation on its board of directors. That representation was provided to protect the United States' important interest in assuring payment of the obligations guaranteed by the United States. Full voting control of Conrail will shift to the shareholders if federal obligations fall below 50% of Conrail's indebtedness. The responsibilities of the federal directors are not different from those of the other directorsto operate Conrail at a profit for the benefit of its shareholders. Thus, Conrail will be basically a private, not a governmental, enterprise. Id., at 152, 95 S.Ct. at 363 (emphasis supplied) (footnote omitted). In light of the nature and extent of the investment of the federal government in Conrail, the corporate nature of Conrail itself and the primarily private nature of its operations, we find that the acts of Conrail cannot be construed as being federal action under the Burton test. The plaintiffs next contend that the acts of Conrail are federal action under the Jackson formulation. We must first determine whether Conrail is primarily private or public and, if private, apply the Jackson "nexus" test to determine if the entity is involved in state action. Chalfont, supra, at 746. In light of its primarily private function and its status as a for-profit corporation, we conclude that Conrail is primarily private. However, the relationship between the injury and the alleged governmental activity must be shown. Mere general regulation is not sufficient. Jackson, supra, 419 U.S. at 350, 95 S. Ct. 449; Moose Lodge No. 107 v. Ervis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972); Broderick v. Associated Hospital Service of Philadelphia, 536 F.2d 1 (3d Cir. 1976). There is no foundation or statutory basis for an allegation that the federal government "fostered or encouraged via statute, regulation or otherwise" Conrail's actions. Hodge v. Paoli Memorial Hospital, supra, at 283. The plaintiffs have not alleged that the federal government was involved, in any manner whatsoever, in the internal management processes of Conrail. "Significantly, there is no allegation that the government exercises control, attempts to exercise control, or otherwise intervenes" in such processes or policies. Stearns v. Veterans of Foreign Wars, 394 F. Supp. 138, 146 (D.D.C.1975), aff'd, 174 U.S.App.D.C. 78, 527 F.2d 1387 (1976), cert. denied, 429 U.S. 822, 97 S. Ct. 72, 50 L. Ed. 2d 83 (1976). Accordingly, we find that, in light of the legislative facts, the plaintiffs have failed to state a claim upon which relief can be granted in Counts III, IV and V. *650 Mental Distress (Count VI) In Count VI, the plaintiffs allege that the "wanton" acts of the defendants caused them severe mental and emotional distress. This tort has been recognized by the Pennsylvania Supreme Court, Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), but liability has only been found where the conduct complained of is "so outrageous . . . so extreme in degree, as to go beyond all possible bounds of decency . . .." Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976), citing Restatement of Torts 2d, § 46, comment d. The acts of the defendant were fully justified statutorily, see 45 U.S.C. §§ 775(b), 771(6), 771(7), and do not rise to the level of the kind of extreme or outrageous conduct necessary to recover for infliction of mental distress. Accordingly, the defendants' motions to dismiss Count VI for failure to state a claim upon which relief can be granted, pursuant to Fed.R. Civ.P. 12(b)(6), will be granted. An appropriate Order will be entered. NOTES [1] The Court notes that, although the defendants filed various affidavits in support of their motions, the Court does not rely upon them in determining that the defendants' motions to dismiss for failure to state a claim upon which relief can be granted as to Counts III, IV and V and, therefore, the defendants' motions pursuant to Fed.R.Civ.P. 12(b)(6) are converted to motions for summary judgment, pursuant to Fed.R.Civ.P. 56.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2857658/	IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-423-CR THE STATE OF TEXAS, APPELLANT vs. JOLIE MICHELLE HOWARD, APPELLEE FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY NO. 346-657, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING After the jury found appellee guilty of the misdemeanor offense of driving while intoxicated, Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1992), the court assessed punishment at thirty days' confinement and a one thousand dollar fine. Both the confinement and fine were probated. The State brings this appeal as a result of the court's action in granting the appellee's motion for new trial. See Tex. Code Crim. Proc. Ann. art. 44.01 (West Supp. 1992). In its first point of error, the State asserts that the court's action in granting the appellee's motion for new trial is void because the trial court had no jurisdiction to grant a new trial based on the State's alleged improper jury argument. In its remaining point of error, the State contends that the court abused its discretion in granting appellee's motion for new trial. We overrule the State's points of error and affirm the order of the trial court granting appellee's motion for new trial. The trial court granted appellee's motion for new trial as a result of the prosecutor's argument at the guilt-innocence stage of the trial. The prosecutor argued: Now, Jolie [appellee] didn't have to testify. She did not have to put on a defense. But the truth of the matter is that you never heard a lot of reasons that were discussed in voir dire and a lot of reasons that were discussed in other parts of the trial is while people---. Appellee's objection that the prosecutor's argument was a comment on the defendant's failure to testify was overruled. In its first point of error, the State urges that the trial court was without jurisdiction to grant a motion for new trial in this cause in that the court sought to exercise the duty and authority expressly granted to the courts of appeals as part of their appellate jurisdiction. It is undisputed that the appellee timely filed her motion for new trial. See Tex. R. App. P. 31. Clearly, the court had jurisdiction of the parties and the offense. In Moore v. State, 749 S.W.2d 54 (Tex. Crim. App. 1988), the issue before the court was the correctness of the trial court's ruling on a motion for new trial. The court stated, "[L]ack of jurisdiction and the improper exercise of jurisdiction are vitally different concepts. If a court has jurisdiction of the parties and subject matter, its determination of the controversy is not void no matter how erroneous the decision may be." Moore, 749 S.W.2d at 57 n.4 (emphasis in original). We hold that the court had jurisdiction to consider appellee's motion for new trial. The State's first point of error is overruled. In its second point of error, the State asserts that the trial court abused its discretion because: (1) the appellee failed to state a claim upon which relief could be granted; (2) the argument of the prosecutor did not constitute a comment on the appellee's failure to testify, and (3) if it did, the comment was not harmful. In Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990), the court articulated a standard for determining when a trial court abuses its discretion. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Thus, judicial rulings will be affirmed if the trial court follows the appropriate analysis and balancing factors, though the appellate court might disagree with the weight given to those individual factors. In short, a trial court judge is given a "limited right to be wrong," so long as the result is not reached in an arbitrary or capricious manner. (Citations omitted). The State cites Prendez v. State, 786 S.W.2d 99 (Tex. App.--San Antonio 1990, no pet.), as authority for its position that improper jury argument is not a basis for granting a motion for new trial. In addition to defendent's other alleged errors was a claim of improper argument by the prosecutor. The court rejected defendant's claim of ineffective counsel because the defendant failed to demonstrate there was a reasonable possibility that he could have prevailed on the motion but for defense counsel's failure. With respect to the complained-about improper jury argument, the court, without citation of authority, stated this was not an appropriate ground for a new trial under Tex. R. App. P. 30(b). We are not persuaded by the statement of the court in Prendez that improper jury argument is not an appropriate ground for a new trial. Comment on a defendant's failure to testify is prohibited by both the federal and state constitutions. See U.S. Const. Amend. V; Tex. Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann. art. 38.08 (West 1979). In Johnson v. State, 611 S.W.2d 649, 651 (Tex. Crim. App. 1981), the trial court erred in failing to grant a mistrial based on the prosecutor's comment on the defendant's failure to testify. We reject the State's argument that improper jury argument cannot be considered in a motion for new trial. The State also contends that the appellee did not urge any reason set forth in Tex. R. App. P. 30 for granting a new trial. Rule 30 provides in pertinent part: (b) Grounds. A new trial shall be granted an accused for the following reasons: (2) Where the court has misdirected the jury as to the law or has committed some other material error calculated to injure the rights of the accused. Appellee's motion for new trial included the complained-of improper argument, the fact that appellee's objection was overruled and an assertion that the "trial court committed an error material to the defense and injurious to the rights of the defendant." We believe there was sufficient compliance with Rule 30 without the inclusion of the term "calculated" in appellee's motion for new trial. The core issue is whether the prosecutor's comment constituted a comment on the appellee's failure to testify. The test to be applied to determine whether there has been a violation by a prosecuting attorney is whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify. See Lopez v. State, 793 S.W.2d 738, 741 (Tex. App.--Austin 1990), pet. dism'd, 810 S.W.2d 401 (Tex. Crim. App. 1991). In determining whether there has been a comment on the accused's failure to testify, we must consider the context in which the argument is made. Bird v. State, 527 S.W.2d 891, 894 (Tex. Crim. App. 1975). The State calls our attention to the fact that the prosecutor had not finished his argument at the time of appellee's objection. Following the objection, the prosecutor argued that appellee could have called the people who were with her "to exonerate her." A comment on a defendant's failure to introduce testimony is permissible so long as the unproduced evidence is not evidence to which only the defendant could have testified. Cook v. State, 702 S.W.2d 597, 600 (Tex. Crim. App. 1984). Moreover, there is no error in stating that a defendant does not have to testify. The focal point of our inquiry is whether the jury would have concluded that the portion of the prosecutor's argument directed to the jury having "heard a lot of reasons that were discussed in voir dire and a lot of reasons that were discussed in other parts of the trial" was a comment on the appellee's failure to testify. The appellee did not offer any testimony at trial. A review of the voir dire reflects that the reasons discussed at this stage of the trial concerned why the appellee refused to take a breath test and why she did not testify. These were not isolated references, but were the subject of counsels' statements on several occasions during voir dire. As noted, in our analysis of whether the court erred, we must determine whether the court abused its discretion in granting the appellee's motion for new trial. We conclude that the trial court did not abuse its discretion in finding that the prosecutor's argument constituted a comment on the appellee's failure to testify. The reasons appellee did not take a breath test and elected not to testify were of such a character that the jury would naturally and necessarily take it to be a comment on the appellee's failure to testify The State contends that the prosecutor's argument was not harmful. We disagree. A comment on the defendant's failure to testify is often not cured where the court has sustained the objection and given the jury an instruction to disregard. Jones v. State, 693 S.W.2d 406, 407 (Tex. Crim. App. 1985); Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983). In the instant cause the appellee's objection was overruled and no curative instruction was given the jury. We reject the State's contention that the argument was not harmful. The State's second point of error is overruled. The order of the trial court granting appellee's motion for new trial is affirmed. Tom G. Davis, Justice [Before Justices Jones, Kidd and Davis] Affirmed Filed: October 7, 1992 [Publish] Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/1519841/	118 N.H. 199 (1978) DAVID L. MOSKOWITZ v. BARBARA R. MOSKOWITZ MICHAEL BOLDUC v. CHRISTINE BOLDUC Nos. 7937 & 7949 Supreme Court of New Hampshire. March 31, 1978. 200 Tetler & Holmes, of Hampton (Edward R. Woiccak, by brief) and New Hampshire Civil Liberties Union, of Concord (H. Jonathan Meyer, orally), for the defendant Barbara R. Moskowitz. John C. Emery, of Manchester, and New Hampshire Civil Liberties Union, of Concord (H. Jonathan Meyer, orally), for the defendant Christine Bolduc. BOIS, J. Defendants herein appeal from the denial of their respective motions to restore their maiden names. A change of name is allowed in proceedings for divorce or nullity by RSA 458:24 (Supp. 1975). Basically, both defendants challenge the rulings on the ground of "abuse of discretion." We sustain their exceptions and remand with directions that the superior court either grant the name changes forthwith or hold hearings for the presentation of whatever evidence might be adduced militating against the relief sought. David L. Moskowitz filed a libel for divorce against his defendant wife. Hearing before a Master (Nicholas G. Copadis, Esq.) resulted in recommendations that the libel be granted and that certain orders of custody, support, visitation rights, and division of property be entered. Cann, J., approved the recommendations. The 201 defendant, who had been awarded custody of the minor children, then moved to amend the divorce decree to include restoration of her maiden name. The plaintiff, in writing, waived objection to the grant of this change. The master found and ruled as follows: Defendant's request to resume her maiden name is denied, no good cause having been shown. The court further finds that it would not be in the best interest of the family unit to permit said change of name and would further encourage the minor children to use the mother's maiden name, something which they have already done and which the court finds the defendant has tolerated if not encouraged. The denial of the motion was approved by Mullavey, J. The defendant filed a motion for reconsideration, and the plaintiff, in a pleading, for the first time objected to the change of name and sought an order to restrain the defendant from using or encouraging the use of her maiden name in connection with the minor children. The record does not indicate a hearing on this motion. The master recommended the following decree be entered: Motion denied. The court affirms its prior decree wherein it found as a fact that it would not be in the best interest of the family unit to permit said change of name. The recommendation was approved by Perkins, J. All questions of law raised were reserved and transferred by Mullavey, J. The companion case before us for review is the result of a libel for divorce filed by the plaintiff, Michael Bolduc. The defendant wife, Christine Bolduc, filed an answer and cross-libel. Hearing was had before a Master (Peter J. Bourque, Esq.), who recommended that the court enter a decree of divorce, grant custody of the minor children to the defendant along with certain support payments, and distribute the parties' property. Before the court approved the recommendations and entered a decree, the defendant moved for the restoration of her maiden name. Without setting forth any findings or reasons therefor, the master recommended denial of the motion. On May 5, 1977, Cann, J., approved both recommendations. The defendant excepted to the denial of her prayer for a change of name; all questions of law raised were reserved and transferred by the court. 202 [1, 2] A review of the authorities makes clear that at common law a person could adopt another name at will. In the absence of statutory restrictions, one may lawfully change his name at will without resort to any legal proceedings if the change is not made for a fraudulent, criminal, or wrongful purpose. See Petition of Hauptly, 262 Ind. 150, 312 N.E.2d 857 (1974); Secretary of the Commonwealth v. City Clerks, 366 N.E.2d 717 (Mass. 1977); Egner v. Egner, 133 N.J. Super. 403, 337 A.2d 46 (1975); Knizell v. Podell, 67 Wisc. 2d 138, 226 N.W.2d 458 (1975). Statutes setting forth procedures to be followed merely provide an additional method of making the change. They do not abrogate or supersede the common law, but merely affirm and aid it, and they have been held to be more advantageous both for individuals and for the State. For that reason, application under a statute should be encouraged and generally granted unless made for a wrongful or fraudulent purpose. Re Knight, 36 Colo. App. 187, 537 P.2d 1085 (1975); In Re Reuben, 342 A.2d 688 (Me. 1974); Klein v. Klein, 36 Md. App. 177, 373 A.2d 86 (1977); Piotrowski v. Piotrowski, 71 Mich. App. 213, 247 N.W.2d 354 (1976); Elwell v. Elwell, 132 Vt. 73, 313 A.2d 394 (1973); see 65 C.J.S. Names §§ 10-16 (1966). [3] As in most states, New Hampshire has two types of statutes that authorize procedures by which a court may change persons' names. RSA 547:7 provides that a probate judge "for cause shown may change the names of persons ... who apply therefor." This type of statute places the burden on the petitioner to prove that his request is based on good and sufficient reason and is more than just a whim. The court is allowed to determine, in its discretion, the sufficiency of the reasons, but not to arbitrarily deny the change, unless there exists such special circumstances as unworthy motive, the possibility of fraud on the public, or the choice of a name that is bizarre, unduly lengthy, ridiculous, or offensive to common decency and good taste. In the matter of Walter Knight, 36 Colo. App. 187, 537 P.2d 1085 (1975); In Re Brost, 32 Conn. Supp. 1, 334 A.2d 483 (1974); Ogle v. Circuit Court, 227 N.W.2d 621, 625 (S.D. 1975). In Petition of Hauptly, 262 Ind. 150, 312 N.E.2d 857 (1974) (speculation that a woman's change of name might cause embarrassment to a child is no basis for denial) the court held that "the only duty of the trial court upon the filing of such a petition is to determine that there is no fraudulent intent involved." Once having so found "it is an abuse of judicial discretion 203 to deny any application for a change of name under the statute." Id. at 153, 312 N.E.2d at 860. [4] Another type of statute governing petitions for name changes is RSA 458:24 (Supp. 1975), which authorizes the superior court, whenever a divorce or annulment is granted, to change the woman's name at her instance. It reads as follows: Decree. In any proceeding under this chapter, except an action for legal separation, the court may, when a decree of divorce or nullity is made, restore the maiden or former name of the wife, regardless of whether a request therefor had been included in the libel. Under this statute, directly at issue herein, the legislature's use of the verb "may" indicates that whether a former name should be restored in the decree at the time of divorce is a matter vested in the sound discretion of the court. However, "just what limitations are placed on the court's exercise of that discretion have varied from jurisdiction to jurisdiction, but it is not unbridled." Klein v. Klein, 36 Md. App. 177, 373 A.2d 86 (1977). The discretion must be exercised in light of reason and evidence, and may not be abused. The general rule is that some substantial reason or peculiar circumstance must exist before the court is justified in denying such a request. The burden of proof rests with either the court or interested parties to prove that there exists a lawful objection which overrides the petitioner's right to a name change. [5] The circumstance that there is a minor child is not enough to support a denial of a request for a name change. Mere speculation as to possible embarrassment to, confusion or harassment of, or harmful effect on, the child or children due to the mother's having a different name has been held not to be sufficient reason. See Piotrowski v. Piotrowski, 71 Mich. App. 213, 247 N.W.2d 354 (1976); Egner v. Egner, 133 N.J. Super. 403, 337 A.2d 46 (1975); Elwell v. Elwell, 132 Vt. 73, 313 A.2d 394 (1973). [6] It is true that in marital custody cases we have consistently held that "the paramount and controlling consideration is the overall welfare of the children involved." Houde v. Beckmeyer, 116 N.H. 719, 721, 366 A.2d 504, 506 (1976). The discretion of the court, however, "may be limited according to the circumstances of the case." Hille v. Hille, 116 N.H. 109, 111, 352 A.2d 703, 705 (1976). There is authority to deny the change of name if the interests of *204 a child would be adversely affected thereby. See Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952); Bilenkin v. Bilenkin, 78 Ohio App. 481, 64 N.E.2d 84 (1945); Annot., 53 A.L.R. 2d 914 (1957). [7] We do not suggest that every petition for a change of name be granted, but rather hold that some substantial reason must exist for denying such a petition. The mere fact that there are children is not sufficient ground. On the present record, it is impossible to tell whether restoration of the defendants' former names might have such a harmful effect on the children that there would be good and sufficient reason to deny the change. Our conclusion is based on statutory grounds; hence, we need not consider other arguments set forth. Remanded. LAMPRON, J., did not sit; the others concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1534048/	176 N.J. Super. 603 (1980) 424 A.2d 461 9W CONTRACTORS, INC., PLAINTIFF, v. ENGLEWOOD CLIFFS BOROUGH, DEFENDANT. VIRGINIA FAUST, PLAINTIFF, v. ENGLEWOOD CLIFFS BOROUGH, DEFENDANT. Superior Court of New Jersey, Tax Court of New Jersey. September 17, 1980. 606 Richard Nashel, for plaintiffs. Melvin Gittleman by Edwin C. Eastwood, Jr., for defendant. EVERS, J.T.C. Plaintiffs, 9 W Contractors, Inc. and Virginia Faust (taxpayers) moved to have judgments entered for the tax years 1976 and 1977 pursuant to N.J.S.A. 54:2-43 (Freeze Act) on the basis of judgments entered for 1975. Secondly taxpayers seek an order compelling the defendant Englewood Cliffs Borough (borough) to refund to the taxpayers excess taxes paid together with 607 interest for the tax years 1973 through 1977. The taxpayers' claim for interest is based on statutory and constitutional grounds and equitable principles. In regard to the latter it should be noted that the Tax Court is vested with the authority to make such findings and conclusions and to enter such orders as the equities of the matter may require by virtue of the equitable powers delegated to it in N.J.S.A. 2A:3A-4 which states: (a) "The Tax Court, in all causes within its jurisdiction, and subject to law, may grant legal and equitable relief so that all matters in controversy between the parties may be completely determined." Taxpayers paid the entire tax for each year. With the exception of tax credits allowed in the amount of $3,134 no excess tax payments were refunded nor was any interest paid by the borough. In December 1979 borough tendered payment of the excess taxes, without interest, but taxpayers refused such offer. Borough did not contest the imposition of the Freeze Act to the 1976 and 1977 tax years nor did it deny that taxpayers are entitled to refunds in the total amount of $38,980.44 which sum includes refunds for 1976 and 1977.[1] It resists payment of pre-judgment interest claiming that such interest is not provided for by statute. Borough further argues that taxpayers are barred from raising the issue of pre-judgment interest under the "entire controversy" doctrine and laches. Lastly it argues that the constitutional arguments presented by taxpayers cannot prevail as taxpayers failed to notify the Attorney General of the State of New Jersey of such arguments pursuant to R. 4:28-4. N.J.S.A. 54:2-43 (Freeze Act) provides that where a judgment final has been rendered by the Division of Tax Appeals such judgment shall be binding for the assessment year and the two succeeding years except where a change in value has occurred 608 after the assessing date. The binding effect of the "freeze" ceases with the year immediately preceding the year in which a revaluation becomes effective. The undisputed affidavit of taxpayers' expert appraiser clearly shows that no change in value occurred following the assessment. It is further undisputed that no revaluation became effective during any of the years in question. Accordingly, judgments will be entered for 1976 and 1977 in accordance with the 1975 judgment of the Division of Tax Appeals and said years will be included in the court's determination of taxpayers' second argument concerning interest. Borough's interpretation of R. 4:28-4 with respect to taxpayers' constitutional argument is erroneous. It is only where the validity of a statute, executive order, franchise or constitutional provision of this state is questioned that the party raising the question is required to give notice of the pendency of the action to the Attorney General. Such is not the case here where the taxpayers do not attack a statute or a constitutional provision but, to the contrary, seek the payment of interest on the basis of statutory and constitutional grounds. Accordingly, I find that R. 4:28-4 has no application here. The course of litigation surrounding these matters was lengthy and involved and was finally concluded on January 16, 1979 when taxpayers' Petition for Certification was denied by the Supreme Court. Counsel for taxpayers notified borough of such denial on January 23, 1979. According to taxpayers borough did not consent to a form of judgment implementing the decision of the Appellate Division until July 23, 1979. On August 8, 1979 and again on September 12, 1979 taxpayers requested borough to refund the excess taxes paid together with interest. On December 31, 1979 taxpayers received vouchers from borough which made no provision for payment of interest. Taxpayers did not execute the vouchers and on January 18, 1980 demanded vouchers for both refunds and interest. No such vouchers having been received, taxpayers brought this motion. 609 In addressing the "entire controversy" doctrine Judge Pressler in Wm. Blanchard Co. v. Beach Concrete Co., Inc., 150 N.J. Super. 277, 293 (App.Div. 1977) observed that, as a practical matter, the doctrine cannot be dealt with on an a priori basis and must be applied empirically. That it to say, an evaluation must be made of each potential component of a particular controversy to determine the likely consequences of the omission of that component from the action and its reservation for litigation another day. If those consequences are likely to mean that the litigants in the action as framed will, after final judgment therein is entered, be likely to have to engage in additional litigation in order to conclusively dispose of their respective bundles of rights and liabilities which derive from a single transaction or related series of transactions, then the omitted component must be regarded as constituting an element of the minimum mandatory unit of litigation. That result must obtain whether or not that component constitutes either an independent cause of action by technical common-law definition or an independent claim which, in the abstract, is separately adjudicable. The point, of course, is that a component of the controversy may not be unfairly withheld, see State v. Gregory, supra, 66 N.J. [510] at 518, and a withholding is by definition unfair if its effect is to render the pending litigation merely one inning of the whole ball game. Under the circumstances here present I do not view taxpayers' claim for interest as being barred by the entire controversy doctrine. Certainly the interest claim, even if viewed as a component part of the controversy was not unfairly withheld and certainly its effect cannot be deemed to render taxpayers' claim for a tax reduction as being "merely one inning of the whole ball game". In that connection it must be observed that until a judgment final was entered for 1975, taxpayers could not seek the application of the Freeze Act as to 1976 and 1977 and thus no claim for interest could even have been made as to those years. A contrary finding would require the appealing taxpayer to frame a complaint on the basis that if a reduction is granted and judgment entered thereon and if the Freeze Act applied to the two succeeding years then interest should be allowed thereon. A complaint based on such hypotheses is not contemplated by the doctrine nor is it within its spirit and intent. 610 Borough's dependence on the defense of laches to taxpayers' claim must also fail. Laches involves more than mere delay, mere lapse of time. There must be delay for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party. See West Jersey Title &c. Co. v. Industrial Trust Co., 27 N.J. 144 (1958). Here, even if there was a delay by taxpayers in pursuing their claim-and the facts support no such finding-it cannot be said that any such delay prejudiced the borough. Indeed, the facts might suggest that a contrary argument could be reasonably made. Pursuant to N.J.S.A. 54:3-27.2 and general principles of constitutional due process, it is taxpayers' position that they are entitled to interest on the excess tax payments as follows: (1) Eight per cent (8%) per annum from the date of payment until January 31, 1978; (2) Five per cent (5%) per annum from February 1, 1978, until 60 days following the final judgment (the denial of movants' Petition for Certification by the Supreme Court), or March 16, 1979; (3) The prevailing commercial rate-or the average of prevailing rates-from March 16, 1979 until the date of payment. N.J.S.A. 54:3-27.2 provides in pertinent part; In the event that a taxpayer is successful in an appeal from assessment on real property, the respective taxing district shall refund any excess taxes paid, together with interest thereon from date of payment at a rate of five (5%) per cent per annum, within sixty (60) days of the date of final judgment. This statute was amended in 1977, effective January 31, 1978, to reduce the interest from eight per cent per annum to five per cent per annum and to give the municipality sixty, instead of fifty, days from final judgment to make refund. The prior statute, with interest at the rate of eight per cent was enacted in 1976 and was effective January 1, 1977. Taxpayers argue that, notwithstanding the fact that the effective date of N.J.S.A. 54:3-27.2 as originally enacted was January 1, 1977, interest should be paid on the 1973, 1974, 1975 and 1976 excess tax payments. They claim that the statute was 611 intended to encompass pending appeals dealing with prior years as well as those appeals filed for 1977 and thereafter. In support of this position they rely on the statement of the Senate Revenue, Finance and Appropriations Committee regarding Assembly Bill 1276, the precursor to N.J.S.A. 54:3-27.2. The statement provides in pertinent part as follows: The effective date of the Bill has been amended to have the provisions of the Bill effective commencing with the tax year next following enactment. Thus, all appeals from that tax year forward will be affected. Any appeals under the existing statutes will be treated in the same manner, thereby providing equal treatment to all taxpayers. Taxpayers further argue that denial of interest for the periods requested would violate their constitutional rights not to be deprived of property without due process of law. For the same reason they claim that interest at the prevailing commercial rate should be paid from March 16, 1979 (sixty days following the denial of the Petition for Certification). Any lesser rate, according to taxpayers, would, in effect, reward borough's dilatory behavior and deprive taxpayers of the rightful use of their money. In support of these arguments they rely on Proctor and Gamble Distributing Co. v. Sherman, 2 F.2d 165 (S.D.N.Y. 1924); LaSalle National Bank v. Edward J. Rosewall, et al., 604 F.2d 530 (Seventh Cir.1979); and 713 Co. v. Jersey City, 94 N.J. Super. 210 (Law Div. 1967). In Proctor, Judge Learned Hand stated: [I]t seems to me plain that it is not an adequate remedy, after taking away a man's money as a condition of allowing him to contest his tax, merely to hand it back, when, no matter how long after, he establishes that he ought never to have been required to pay at all. Whatever may have been our archaic notions about interest, in modern financial communities a dollar today is worth more than a dollar next year, and to ignore the interval as immaterial is to contradict well-settled beliefs about value. The present use of my money is itself a thing of value, and, if I get no compensation for its loss, my remedy does not altogether right my wrong. In LaSalle, the court noted that the amount of the tax assessed against plaintiff's property was blatantly illegal and that plaintiff's only remedy at law was to pay the full amount of the tax claimed and thereafter sue for a refund. 612 In 713 Co., the Law Division Judge found no legitimate reason for a delay of some nine months before excess tax payment refunds were made and allowed taxpayer's claim for interest. An examination of the several statutes bearing on the subject of interest on excess tax payments and not just N.J.S.A. 54:3-27.2 is necessary for a proper consideration of taxpayers' arguments. Initially N.J.S.A. 54:3-27 (P.L. 1918, C. 236, Sec. 703) provided in pertinent part; "Any taxpayer who shall file an appeal from an assessment against him may pay to the collector of the taxing district such portion of the taxes assessed against him as he would be required to pay in the event of his appeal being sustained, ...". That section was amended by P.L. 1938, C. 151, Section 1 which provided that the payment mentioned above "shall in no wise prejudice the status of the appeal or the rights of the appellant ..." In that circumstance the taxpayer would generally pay only the portion of the taxes not in dispute and any excess payment was deemed to be voluntary. The classic case on that point is Hahne Realty Corp. v. Newark, 119 N.J.L. 12 (E. & A. 1937). There a taxpayer appealed to the State Board of Tax Appeals from a dismissal of his appeal to the county board of taxation. While the appeals were pending the taxpayer paid the taxes in full. The State Board of Tax Appeals decision resulted in an abatement of the taxes paid in the sum of $16,454.20. Although the taxing district tendered that sum to the taxpayer it was refused unless interest on the excess payment was added. The court, after quoting N.J.S.A. 54:3-27 (P.L. 1918, C. 236, Sec. 703) stated, at page 16: This, we think, is indicative of legislative intent that abatement of taxes should not bear interest. The taxpayer has it in his power, if he intends to challenge the assessment, to pay on an assessment that he conceives to be just and it is the duty of the taxing authority to receive it and to give him the proportionate discount if payment is made in advance just as if payment of the assessment, as stated, was made in full. Where the taxpayer believes the assessment is too high he is under no compulsion to pay except the sum he admits to be due. 613 Continuing and noting that there was no compulsion on the taxpayer to pay the full amount of taxes, the court said: No demand was made that the taxes be paid on the particular dates on which they were paid. Where the taxpayer, as here, pays the taxes called for by the assessment of valuation, though he disputes the amount thereof, in advance of a hearing of the appeal, it seems clear that the payment is voluntarily made and at the risk of the taxpayer. The assessment was not illegal per se. The valuation was too high-an error of judgment on the part of the assessor whose duty it is, under the statute, supra (section 202), to assess real and personal property at true value. The power to levy a proper tax was not wanting-there was no infirmity in the proceeding of making the assessment as was the situation in the cases upon which appellant relies. The excessive assessment was a mistake of fact. The appellant did not choose to retain that part of the tax money which it believed to be in excess of the true valuation, as it might have done legally, and litigate about the excess. It elected to pay first and litigate later. Under these circumstances, we do not think the amount of taxes abated should carry interest. In Edgewater v. Corn Products Refining Co., 136 N.J.L. 664 (E. & A. 1947), the court, in denying interest on the rebate of an excessive payment of municipal taxes, said at page 670: "It is the general rule that interest is not recoverable on an abatement of a tax liability unless provision therefor is made by statute". In 713 Co. v. Jersey City, supra, the court said: "It is a well settled rule of law in New Jersey that interest is not recoverable on an abatement of a tax liability unless provision therefor is made by statute". By P.L. 1968, C. 365 the legislature provided: N.J.S.A. 54:2-41.5. In any appeal to the Division of Tax Appeals ... from a judgment of a county board of taxation heretofore instituted and pending on the effective date of this Act or hereafter instituted, the taxpayer, notwithstanding the provisions of any other law, shall, upon order of the Division of Tax Appeals, be required to pay ... not less than 75% of the full amount of the taxes that would have been payable had the said appeal to the Division not been instituted. Such payment shall be subject to a refund of any excess taxes paid together with interest thereon at a rate equal to the rate charged by the taxing district on delinquent taxes. .. . Any such refund shall be paid by the taxing district within fifty (50) days from the date of the judgment; ... It is to be noted that the enactment of N.J.S.A. 54:2-41.5 did not repeal or in any way impair the provisions of N.J.S.A. 54:3-27 pursuant to which the taxpayer could pay only the taxes that he would be required to pay if his appeal was sustained. As previously noted any payments beyond that amount were 614 deemed voluntary and would carry no interest in the event of a refund. However where the amount paid was less than 75% of the amount due if the assessment was not challenged the taxing district, by virtue of N.J.S.A. 54:2-41.5 could, by obtaining an order from the Division of Tax Appeals, compel a 75% payment. The legislature recognized that excess payment in that instance was not voluntary and provided for payment of interest thereon. When the taxpayers paid the 1973, 1974, 1975 and 1976 taxes the only statute authorizing the payment of interest was N.J.S.A. 54:2-41.5. However, interest was due only in the event the taxpayer was compelled to pay, in the final analysis, excess taxes pursuant to an order of the Division of Tax Appeals. No such order was issued here and thus the interest provisions of N.J.S.A. 54:2-41.5 do not apply to 1973, 1974, 1975 and 1976. It is that compulsion to pay in order to prosecute a tax appeal in the first instance which distinguishes Proctor & Gamble, supra and LaSalle, supra from the situation which existed here from 1973 through 1976. Judge Hand noted that it was an inadequate remedy to disallow interest after "... taking away a man's money as a condition of allowing him to contest his tax". [emphasis supplied]. Again, in LaSalle, the court noted that "... plaintiff's only remedy at law was to pay the full amount of the tax claimed and thereafter to sue for a refund". [emphasis supplied]. On March 3, 1976 P.L. 1975, C. 361 was enacted which repealed N.J.S.A. 54:2-41.5 and amended N.J.S.A. 54:3-27 to provide that an appealing taxpayer shall pay no less than 90% of the taxes assessed even though his petition may request a deduction in excess of 10% of the assessed taxes. As amended it further provided that the taxing district shall refund any excess taxes by the successful taxpayer together with interest at eight per cent thereon from the date of payment within fifty days of the date of judgment. The Act became effective "for purposes of the tax year next following enactment and thereafter". It thus became effective January 1, 1977. Clearly such excess tax payments cannot be deemed to be voluntarily made in that year. 615 On January 31, 1978 N.J.S.A. 54:3-27 was again amended and supplemented by P.L. 1977, C. 357 which provided that an appellant shall pay the first three quarters taxes in prosecuting an appeal to the county board. Section 2 of the Act (amending N.J.S.A. 54:2-39) was amended to provide for payment of all taxes for the tax year in prosecuting an appeal before the Division of Tax Appeals. Section 3 of the Act, N.J.S.A. 54:3-27.2, provided that the taxing district shall refund any excess taxes paid, together with interest thereon from the date of payment at a rate of five per cent per annum, within sixty days from the date of final judgment. These amendments did not disturb the compulsive nature of the tax payments and thus any such payments were not deemed to be made voluntarily. In summary it is clear that no interest is due on refunds where the excess tax payments were voluntarily made. It is just as clear that unless provided for by statute no interest is due on excess payments in any event. As to 1973, 1974, 1975 and 1976 therefore, unless N.J.S.A. 54:3-27.2 applies retroactively as contended by the taxpayers, pre-judgment interest cannot be allowed. No authority is cited by taxpayers in support of their position. They rely solely on the statement attached to the Assembly Bill. However, a careful reading of that statement indicates that the provisions of the statute are effective commencing with the tax year next following enactment. All appeals from the tax year forward will be affected. The bill also states the new provision commences with a new tax year. That statute has an effective date of January 31, 1978. The predecessor to that statute had an effective date of January 1, 1977. Clearly, these statutes are not applicable to the 1973, 1974, 1975 and 1976 tax years. A cardinal rule in the interpretation of statutes is that words in a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intent of the legislature cannot otherwise be satisfied. Kopczynski v. County of Camden, 2 N.J. 419, 424 (1949); Skulski v. Nolan, 68 N.J. 179 (1975). 616 There is no terminology in the enactments set forth in P.L. 1975, C. 361 and P.L. 1977, C. 357, ante, from which it might be inferred that a retrospective construction was intended by the legislature. It would require language such as was set forth in P.L. 1968, C. 365 (since repealed), ante, which provided that interest was to be paid on the abated taxes in connection with any appeal "heretofore instituted and pending on the effective date of this Act or hereafter instituted." [emphasis supplied]. Since the statute was enacted on March 3, 1976, the plain meaning of the language "This Act shall take effect for purposes of the tax year next following enactment and thereafter" is that it was to take effect for the tax year 1977 and thereafter and could have no effect with respect to the payment of taxes prior to 1977. The principle was pointed out in Brasko v. Duchek, 127 N.J. Eq. 567 (Prerog.Ct. 1940) where the court said, at page 569: The general rule is that a statute which expressly provides that it shall become effective on a certain date in the future is to be construed in the same manner as if it had been enacted on that date, that it speaks only from the date on which it is to go into effect, and has no force or effect whatever until the arrival of that date. Under the circumstances taxpayers are entitled to no pre-judgment interest on refunds due for the years 1973 through 1976. By virtue of the provisions of N.J.S.A. 54:3-27 and N.J.S.A. 54:3-27.2, which became effective for the 1977 tax year, I find taxpayers are entitled to pre-judgment interest on the excess 1977 taxes at the rate of eight per cent. Since the Act required payment of only 90% of the taxes due, it may be argued that where 100% of the taxes had been paid 10% of the payment was voluntary and thus no interest is due on that portion. That argument runs contrary to what I perceive to be the obvious legislative purpose which was to encourage the appellant to pay its taxes in full by providing that the taxpayer shall pay no less than 90%. [emphasis supplied]. The reasonable inference to be drawn from that language is that the 617 legislature intended that more than 90% be paid if the taxpayer consented to do so. Additionally, in paragraph 2 of N.J.S.A. 54:3-27 is found the language "... payment of part or all shall in no wise prejudice the status of the appeal ..." [emphasis supplied]. This again is indicative of an intent that a taxpayer should not be adversely affected by paying more than 90%. Lastly, N.J.S.A. 54:3-27.2 states "... the taxing district shall refund any excess taxes with interest thereon". [emphasis supplied]. This point was clearly made when, with the amendment effective January 31, 1978, the legislature decreed that all taxes must be paid (in order to prosecute an appeal at the state level) and that the taxing district shall refund any excess taxes together with interest thereon at a rate of five per cent. [emphasis supplied]. In view of the foregoing taxpayers are entitled to and shall receive interest on the 1977 excess tax payments at the rate of eight per cent from the date of such payments[2] to January 31, 1978 at which time the statutory interest was reduced to five per cent. The judgments became final on January 16, 1979 when the Petition for Certification was denied. Pursuant to N.J.S.A. 54:3-27.2 all excess tax refunds together with interest (in this case for 1977 refunds only) should have been paid within 60 days thereafter or no later than March 17, 1979. Consequently interest has accrued on the 1977 excess taxes at the rate of five per cent from January 31, 1978 to March 17, 1979. No explanation was offered by borough for the delay in refunding the excess tax payments. It is clear however that until December 31, 1979, in spite of the demands made by taxpayers no payments, nor offers of payment, were made by the borough. By withholding the monies it is reasonably concluded that certain benefits accrued to the borough while taxpayers 618 lost the use of money which was rightfully theirs. The question to be resolved then is at what point did the retention of the excess tax funds together with interest on the 1977 tax payments become wrongful. Confronted with a similar question in 713 Co. v. Jersey City, supra, the court, in its exercise of discretion upon equitable principles concluded that the taxpayer was entitled to interest but that such interest would not commence to accrue until 75 days from the date of judgment. The court allowed 45 days for the period within which the city had the right to appeal and an additional 30 days to facilitate the necessary and formal resolution to provide for the payment of the refund. Here the initial appeal was filed in December 1973 with appeals thereafter filed in 1974 and 1975. Hearings were conducted before the Bergen County Tax Board, the Division of Tax Appeals and the Appellate Division of the Superior Court. In October 1978 the Appellate Division released its opinions. No Petition for Certification was filed by the borough from those decisions and they became final in January 1979 when the taxpayers' Petition was denied. It cannot be believed that borough was not aware of every aspect of the case during the over five years of litigation. It took no action when the Appellate Division decisions were rendered and it took no action when those decisions became final. In short, it did nothing but retain and use taxpayers' funds for its own benefit. In 1967 the court in 713 Co. v. Jersey City, supra, did not have the benefit of the provisions of N.J.S.A. 54:3-27.2 which provide for a 60 day period to make such payments and thus allowed a 75 day period for such action. With the adoption of N.J.S.A. 54:3-27.2 the legislature obviously concluded that 60 days constituted a reasonable period within which the municipality should act. It is not for this court to disagree with that conclusion and accordingly I find that the borough was charged with the duty 619 of making payment to taxpayers no later than March 17, 1979. I further find that the unreasonable delay in returning the monies due and owing on these judgments beyond March 17, 1979 warrants the payment of interest at the rate of 10% which I find to be fair and reasonable during the period in question. It is lastly to be observed however that regardless of the delay in making payment borough, on December 31, 1979, did tender the tax overpayment to taxpayers. This tender was refused. Taxpayers should have accepted this offer while reserving their rights to litigate the question of interest. In declining to do so they forfeited their rights to collect interest beyond December 31, 1979. In light of the above an Order will be entered directing borough to refund to 9W Contractors, Inc. the sum of $29,072.90 together with interest on $6,432.20 which is the amount of refund due for 1977. Commencing with the dates of payment of the 1977 excess taxes until January 30, 1978 interest will be paid at the rate of eight per cent. From January 31, 1978 to March 17, 1979 (411 days) interest will be paid at five per cent and thence on the total sum at the rate of 10% from March 18, 1979 through December 31, 1979 (288 days). As to Virginia Faust an Order will be entered directing the borough to refund the sum of $9,907.54 together with interest on $2,117.22 which is the amount of the refund due for 1977. Interest will be computed at the same rates and for the same time periods as set forth above. The Orders shall further provide that full payment shall be made by borough to taxpayers no later than 60 days following the date of the Orders. In the event such payments are not so made interest will accrue thereon at the rate of 12%. I direct the Clerk of the Tax Court to enter Orders in accordance with the above. NOTES [1] $29,072.90 for 9W Contractors, Inc. and $9,907.54 for Virginia Faust. [2] The record does not disclose the specific date(s) of such payment(s) but such date(s) are readily ascertainable by the parties.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520263/	211 N.J. Super. 196 (1986) 511 A.2d 690 CHRISTINE MCDERMOTT, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL MCDERMOTT, AND CHRISTINE MCDERMOTT, AS PARENT AND GUARDIAN OF INFANT MICHELLE MCDERMOTT, AND CHRISTINE MCDERMOTT, INDIVIDUALLY, PLAINTIFF-APPELLANT, v. TENDUN CONSTRUCTORS, ROHR INDUSTRIES, INC., ROHR INDUSTRIAL SYSTEMS, INC., ROHR CORPORATION, UNDERHILL CONSTRUCTION COMPANY, E.C. ERNST, INC., TERMINAL CONSTRUCTION COMPANY, DIC CONCRETE CORPORATION, NAGER ELECTRIC CO., INC., CONTROLMATION SYSTEMS, INC., AND LESTER B. KNIGHT AND ASSOCIATES, INC., DEFENDANTS-RESPONDENTS. Superior Court of New Jersey, Appellate Division. Argued May 20, 1986. Decided June 17, 1986. 199 Before Judges MICHELS, GAULKIN and STERN. Milton D. Liebowitz argued the cause for appellant Christine McDermott (Liebowitz & Liebowitz, attorneys; Milton D. Liebowitz, of counsel and on the brief). Richard J. Laiks argued the cause for respondents Tendun Constructors and Nager Electric Co., Inc. (Heller & Laiks, attorneys; Richard J. Laiks, of counsel and on the letter brief). David J. Kenny argued the cause for respondent Lester B. Knight and Associates, Inc. (Schragger, Schragger & Lavine, attorneys; David J. Kenny, of counsel and on the brief). Robert S. Bonney, Jr. argued the cause for respondents Rohr Industries, Inc., Rohr Industrial Systems, Inc. and Rohr Corporation (Evans, Koelzer, Osborne & Kreizman, attorneys; Robert S. Bonney, Jr., of counsel and on the brief). Robert T. Hueston argued the cause for respondent E.C. Ernst, Inc. (Hueston, Hueston & Sheehan, attorneys; Robert T. Hueston, of counsel and on the letter brief). 200 Amy L. Wizda argued the cause for respondent Terminal Construction Company (Tolstoi & Tolstoi, attorneys; Maureen Lepochat, of counsel and on the brief). John J. Scanlon argued the cause for respondent DIC Concrete Corporation (Scanlon & Robinson, attorneys). Eugene J. McDonald, attorney for respondent Underhill Construction Company. Archer & Greiner, attorneys for respondent Controlmation Systems, Inc. The opinion of the court was delivered by MICHELS, P.J.A.D. Plaintiff Christine McDermott, as General Administratrix and Administratrix ad prosequendum of the Estate of Michael McDermott, and Christine McDermott, as parent and guardian of infant Michelle McDermott, and Christine McDermott, individually, appeals from a summary judgment of the Law Division entered in favor of defendants and third-party defendants: (1) TENDUN Constructors (TENDUN); (2) Terminal Construction Corporation (Terminal); (3) E.C. Ernst, Inc. (Ernst); (4) Nager Electric Co., Inc. (Nager); (5) DIC Concrete Corporation (DIC); (6) Underhill Construction Co. (Underhill); (7) Rohr Corporation a/k/a Rohr Industries, Inc., Rohr Plessey Motor Development Corporation, Rohr Plessey Corporation a/k/a Rohr Industrial Systems, Inc., Plessey Dynamics Corp., Plessey North America Corp., Plessey Company Limited (collectively referred to as Rohr); (8) Controlmation Systems, Inc. (Controlmation); and (9) Lester B. Knight and Associates, Inc. (Knight), which dismissed plaintiff's complaint, as well as all crossclaims, counterclaims, claims for indemnification and third-party complaints with prejudice in this wrongful death and survival product liability action. Plaintiff instituted this action, grounded on claims of negligence, breach of warranty and strict liability in tort, against TENDUN, a joint venture consisting of contractor defendants 201 Terminal, Ernst, Nager, DIC and Underhill; Rohr, TENDUN's subcontractor and Knight, an architectural design firm. The suit arose from an accident at the New York Bulk and Foreign Mail Center (NYB & FMC) in Secaucus, New Jersey in which plaintiff's husband, Michael McDermott (decedent) was killed on December 15, 1979. At the time of the accident decedent, a mail handler at the NYB & FMC, was using an extendable conveyor that had been rolled into the trailer portion of a tractor-trailer. This conveyor was being used to convey parcel mail to decedent which he was to stack inside the truck. When discovered by co-workers, decedent was found with his head partially under the head-end of the conveyor, which was located inside the trailer, with his legs pointing into the truck, away from the conveyor. It was later ascertained by the medical examiner that decedent's death had been caused by multiple skull fractures, with subdural hematoma, and multiple rib fractures with internal bleeding. As a result of her husband's death, plaintiff instituted this action against the above-named parties who were believed to be involved in the design, development and/or manufacturer of the conveyor during the construction of the NYB & FMC facility in the 1970's. The record submitted in connection with this appeal reveals that on September 17, 1969, the United States Post Office Department (POD) entered into a contract with defendant Knight, an architectural firm, with respect to the construction of the NYB & FMC facility. Pursuant to the terms of this contract, Knight was to develop "new and improved engineering concepts and plans for mechanized mail processing systems in the New York Metropolitan Area." The contract further specifically provided that Knight was to: furnish all engineering and other services and materials necessary for the development of a mail processing system concept for the two [planned] facilities, including the preparation of the specifications for the facilities and the mechanization to be used for mail processing. These specifications [were to] conform to best industrial practices and [were to] be adequate to permit the solicitation of bids for construction of the facilities and the procurement of the mail processing equipment to be used therein. [Emphasis supplied]. 202 Pursuant to its contract with the POD, Knight thereafter prepared a bid package which was submitted to and approved by the POD. In developing this bid package, Knight prepared specifications and drawings which, pursuant to the terms of its contract with the POD: ma[d]e use of existing POD standard components, drawings, design details and drawing practices to the extent that they [were] consistent with [its] overall plan for the design of these systems and [did] not interfere with [its] freedom to provide a functional system design in accordance with standard industrial practices. [Emphasis supplied]. Upon approving the bid package prepared by Knight, the POD entered into an inter-agency agreement with the United States Army Corps of Engineers (Corps). Pursuant to this contract, the Corps was to solicit bids, award contracts for and supervise the construction of the NYB & FMC. Accordingly, the Corps presented the bid package, prepared by Knight, to prospective contractors and, in May 1971, a contract for the construction of the NYB & FMC was awarded to TENDUN. Pursuant to the terms of the contract between TENDUN and the U.S. Government, TENDUN was to "perform [its] contract in strict accordance with the General Provisions and the ... designated specifications, schedules, drawings, and conditions...." On July 23, 1971, TENDUN, as general-contractor, entered into a subcontract with Rohr for the fabrication of extendable conveyors to be used within the NYB & FMC facility. This contract included the fabrication of the conveyor with which decedent was working on the date of his death. This contract specifically required that Rohr "design, furnish and deliver ... all of the mechanization equipment ... in strict accordance with all of the Proposal Documents, Technical Provisions, Addenda, Amendments and Drawings, hereinafter referred to as `The Contract Documents,' all as prepared by Lester B. Knight and Associates, Inc.... and the Department of the U.S. Army, Corps of Engineers...." 203 Pursuant to these contract requirements, Rohr prepared layout shop drawings from the plans and specifications contained in the bid package. In doing this, Rohr utilized the design drawings and written specifications which had been prepared by Knight, in order to achieve a single shop drawing which graphically depicted the extendable conveyor and incorporated all details contained on the multiple contract documents. Once completed, these layout drawings were submitted to both Knight and the Corps for approval, since Knight was contractually bound to serve as consultant to the Corps throughout the duration of the construction project. It is not disputed that, ultimately, shop drawings prepared by Rohr, based upon Knight's design specifications, were approved for fabrication. In initiating the fabrication of these extendable conveyors, Rohr prepared a pre-production model for inspection by TENDUN, the Corps and Knight. This model was visually inspected and put through operational testing in order to determine whether the conveyor complied with applicable plans and specifications. Following this and other such inspections, Rohr was provided with a series of punch-list deficiencies, which it corrected in order to bring the conveyor into compliance with contract plans and specifications. Thereafter, Rohr's subcontractor for fabrication, BRO-CON (a defunct non-party), completed production of all extendable conveyors which were required at the NYB & FMC and delivered them to the facility. During these pre-production inspections, the "stop and go" control for the model extendable conveyor, which had been manufactured by Controlmation, was temporarily mounted on the machine, with clamps, in a location generally designated in the specifications prepared by Knight. According to these Sack Handling Systems Specifications, each extendable conveyor at the NYB & FMC was to be controlled "from a control station at the head end of the conveyor." During a pre-delivery inspection, Charles Schroer, the area engineer and resident contracting officer for the Corps, specifically directed where the push-button controls ultimately were to be permanently placed. Accordingly, 204 at the time the completed conveyors were installed at the NYB & FMC facility, the controls were affixed at the location designated by the Corps representative. There is no dispute that, when the conveyors were turned over to the POD, they were in full compliance with the contractual plans and specifications which had been prepared by Knight and approved and adopted by the POD. Following decedent's death and the filing of plaintiff's complaint in July 1979, there followed two and one-half years of extensive discovery by all parties. Following the conclusion of discovery, all defendants moved for summary judgment. On December 22, 1983, the trial court granted summary judgment in favor of all defendants except Knight, dismissing all direct claims, crossclaims and third-party claims as to these parties. The summary judgment was thereafter certified as final, pursuant to R. 4:42-2. Both plaintiff and Knight appealed and, in an unpublished opinion filed December 18, 1984, we remanded the case for further proceedings, noting that we were "seriously disadvantaged by the failure of the trial judge to give ... any finding or conclusions in support of his order." McDermott v. Lester B. Knight and Associates, Inc. (Docket Nos. A-2823-82T2 and A-2455-83T2). On remand, following argument, Judge Longhi in the Law Division granted summary judgment in favor of all defendants and third-party defendants and against plaintiff, dismissing the complaints, cross-claims, third-party complaints and claims for indemnification with prejudice. The summary judgment as to all defendants, except Knight, was granted on the ground that these defendants were entitled to governmental immunity. The trial court denied Knight's motion for summary judgment on this ground, reasoning that it was Knight who essentially prepared the allegedly defective plans and specifications for the POD. The trial court, however, additionally determined that summary judgment should be granted as to Knight, on the alternate 205 ground that plaintiff had failed to make a prima facie showing, based upon competent expert testimony, that there was any design defect in the extendable conveyor. In rendering this decision, the trial court specifically concluded: that the record to date does not show and cannot show that there was some deviation or some defect in the plans and specifications ... as drawn by Lester B. Knight; or that there was ... a design defect ... at the time that [the extendable conveyor] left any of the manufacturers. Plaintiff now again appeals the summary judgment as to all defendants, while Knight has challenged the denial of summary judgment as to it on the issue of governmental immunity. We are convinced from our study of the record, in light of the arguments presented, that summary judgment was properly granted by the trial court. Summary judgment is a stringent remedy and should not be granted unless the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. R. 4:46-2. The moving party's burden in this regard is to exclude any reasonable doubt as to the existence of any genuine issue of material fact. All inferences of doubt are drawn against the moving party in favor of the opponent of the motion. Thus, the papers supporting the motion are closely scrutinized and the opposing papers indulgently treated. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954). See also Brenner and Co. v. Perl, 72 N.J. Super. 160, 166 (App.Div. 1962). If there is the slightest doubt as to the existence of a material issue of fact, the motion must be denied. Linn v. Rand, 140 N.J. Super. 212, 216 (App.Div. 1976). See also United Advertising Corp. v. Metuchen, 35 N.J. 193, 195-196 (1961). Thus, in Ruvolo v. American Casualty Co., 39 N.J. 490 (1963), our Supreme Court summarized the standard governing the grant or denial of summary judgment, commenting: It is a matter of common knowledge that such judgments are to be granted with extreme caution. The moving papers and the pleadings are to be considered most favorably to the party opposing the motion. All doubts are to be 206 resolved against the movant. It has been said on the federal scene (after whose rule our own is patterned) that a litigant has the right to trial where there is the slightest doubt as to the facts. Peckham v. Ronrico Corp., 171 F.2d 653, 657 (1 Cir.1948); Doehler Metal Furniture Co. v. United States, 149 F.2d 130, 135 (2 Cir.1945). If there is such a doubt it cannot be said the movant's case is unequivocally established or that palpably there is no genuine issue as to any material fact challenged. (Citation omitted). [Id. 39 N.J. at 499]. Considering the case in this light, we are satisfied that the trial court properly determined that all defendants, with the exception of Knight, excluded all reasonable doubt as to their entitlement to governmental immunity since it is clear that they were contractually bound to and did, in fact, complete their work in strict compliance with relevant contractual plans and specifications. This court has recognized that, in a products liability action, where a defendant has had no discretion and has "strictly adhered to the plans and specifications owned and provided by the Government," there can be no liability imposed. Sanner v. Ford Motor Co., 154 N.J. Super. 407, 409 (App.Div. 1977), certif. den., 75 N.J. 616 (1978). This extension of governmental immunity is necessary in light of both the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., and the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a), which respectively insulate State and Federal governmental entities from liability for discretionary activities. As we concluded in Cobb v. Waddington, 154 N.J. Super. 11 (App.Div. 1977), certif. den., 76 N.J. 235 (1978): The statutory immunity would be meaningless if a public entity's contractor which follows government specifications were held to the liability from which the public entity is shielded. Under these circumstances the contractor enjoys the same protection. (Citation omitted) [154 N.J. Super. at 18]. See also Rodriguez v. N.J. Sports & Exposition Authority, 193 N.J. Super. 39, 45 (App.Div. 1983), certif. den., 96 N.J. 291 (1984) (public contractor is not liable for work done in accordance with plans and specifications furnished by a public entity and performed under its guidance and supervision). Here, there was no proof whatsoever presented to create a factual issue as to whether any of the defendants, other than Knight, failed to strictly comply with either the terms of their 207 contracts or the directions and orders issued by the government through its engineering consultant, the Corps. Accordingly, we hold to the view that the trial court properly granted summary judgment as to all defendants, except Knight. With respect to Knight, we conclude that summary judgment grounded upon governmental immunity was properly denied since the record clearly indicates that this entity was fully responsible for planning and designing all aspects of the NYB & FMC facility, including the extendable conveyors. Although Knight's contract specified that it was to employ "existing POD standard components, drawings, design details and drawing practices" where practical, it is equally clear that these specifications were not to "interfere with its freedom to provide a functional system design in accordance with standard industrial practices." Accordingly, in developing its designs for the NYB & FMC, Knight was not strictly bound by government specifications or demands. Indeed, the Sack Handling Systems Specifications utilized in the production of the extendable conveyors did not exist until Knight created them. It has been recognized that to rely on a "government contract defense," the obligation from which a defendant seeks immunity must have been contained within the contract which was executed with the government. Merritt, Chapman & Scott Corp. v. Guy F. Atkinson Co., 295 F.2d 14, 15 (9th Cir.1961). However, where, as here, the record reveals no evidence that a defendant was required by any governmental directive to do that which was charged against it, the "government contract defense" is unavailable. Id. at 16. See also McKay v. Rockwell International Corp., 704 F.2d 444, 450 (9th Cir.1983), cert. den., 464 U.S. 1043, 104 S.Ct. 711, 79 L.Ed.2d 175 (1984) (when only minimal or very general requirements are set forth by the United States contract, the government contractor defense is inapplicable). Although Knight clearly was not entitled to summary judgment based upon governmental immunity, we find that the trial 208 court properly granted it summary judgment on the alternate ground that plaintiff had failed to make a prima facie showing, based on competent expert testimony, that there was any design defect in the extendable conveyors which Knight designed. The only evidence of alleged defective design was presented by plaintiff's engineering expert, Seymour S. Bodner, P.E. (Bodner). In his written report Bodner concluded that: the subject conveyor # 23, as configured at the time of the accident, did not conform to the accepted safety standards for such equipment. The accident which occurred at the inrunning nip between the conveyor belt and the snub roll resulted from the failure to install the correct guarding devices for the conveyor's hazards and from the location of the operator's control in a position not readily accessible to the operator's working position at the head end of the conveyor and adjacent to the non-protected inrunning nip. [Emphasis supplied]. However, this evidence is clearly insufficient to support a finding that a design defect existed at the time the extendable conveyors were fabricated and turned over to the POD. In a design defect case, such as this, plaintiff must prove that: (1) the product was defective; (2) the defect was in existence at the time the product left defendant's control; and (3) the defect caused a reasonably foreseeable user to suffer injury. O'Brien v. Muskin Corp., 94 N.J. 169, 179 (1983); Michalko v. Cooke Color & Chemical Corp., 91 N.J. 386, 394 (1982). Proof that the product was defective requires more than a mere showing that the product caused the injury. The necessity of proving a defect in the product as part of the plaintiff's prima facie case distinguishes strict from absolute liability, and thus prevents the manufacturer from also becoming the insurer of a product. [O'Brien v. Muskin Corp., supra, 94 N.J. at 179-180 (Emphasis supplied)]. Therefore, in a design defect case, plaintiff clearly bears the burden of producing evidence that the product contained a defect. In this matter, plaintiff's expert apparently was of the opinion that the design defect in the extendable conveyor was twofold in that it: (1) lacked adequate guarding devices; and (2) was operated by controls which were not readily accessible. In 209 considering the sufficiency of the first contention, it must initially be noted that Bodner's expert opinion focused upon the adequacy of the extendable conveyor's guarding on the day of the accident, rather than at the time it was manufactured. This improper focus is evidenced by repeated references in Bodner's written expert report to the machine's configuration "at the time of the accident," as well as by his deposition testimony. While being deposed, Bodner explained that: [he] was merely retained to do an engineering evaluation of the conveyor as it existed and the adequacy of the guarding and safety of that conveyor at the time of the accident. [Emphasis supplied]. The improper focus of Bodner's observations is further evidenced by the fact that he never reviewed the original specifications for mechanized equipment at the NYB & FMC facility. In explaining why he had not reviewed these documents before rendering his opinion, Bodner stated that "[t]hey [were] not relevant as far as [his] assignment [was] concerned," since his function was simply to render an opinion as to whether, at the time of the accident, the machine was safe. Having made these observations, we next note that, as specified in the Sack Handling Systems Specifications, the extendable conveyors were to have "[e]nclosures and guards ... installed in the locations shown on the drawings and as specified." Accordingly, as designed and fabricated the in-running nip point and moving parts at the lower end snub roller and conveyor belt were guarded to prevent accidental employee contact. However, by the time of decedent's accident, it was uncontroverted that this area of the conveyor was not guarded due to the removal of the electrically interlocked bumper guard which was located at the head end of the conveyor at the time the machinery was installed at the NYB & FMC facility. It was the uncontroverted opinion of Knight's engineering expert, O'Brien-Kreitzberg & Associates, Inc. that: 210 [a]s initially installed, this interlock bumper guard would have prevented any access by employees to the hazard of being drawn into the in-running nip point located on the conveyor's underside. * * * * * * * * [However, m]aintenance failures over the six years during which conveyor SR-23D was operated resulted in the electrically interlocked bumper guard located at the head end of the conveyor to be removed without replacement. This resulted in an additional area of entry to the in-running nip point located on the conveyor's underside. [Emphasis supplied]. In view of the fact that the conveyor, as designed, contained a safety guard which was removed by the POD, plaintiff's allegations with respect to this design defect are irrelevant, with reference to the design of the conveyor unless, at the time of design and fabrication, it was foreseeable that such a removal would occur. The Supreme Court has recognized that an unforeseeable misuse of a product may not give rise to strict liability. Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 159 (1979); Cepeda v. Cumberland Engineering Co., 76 N.J. 152, 177-178 (1978). However, [w]hile strict products liability attaches when the product, shown to be defective, has been used for its intended purposes as originally designed, ... a manufacturer can also be held liable under strict liability principles for design defects if it is objectively foreseeable that a substantial change in the product will cause injury. [Brown v. United States Stove Co., 98 N.J. 155, 165-166 (1984) (Emphasis supplied)]. While a change in any product may be viewed as material or significant from a design or operational standpoint, it is not deemed to be "substantial" for strict liability purposes unless the change is related to the safety of the product. Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137, 148 (1984). "A substantial alteration is one that involves not only a material change in the design or function of the product but also affects the risk of danger in its use." Ibid. Thus, in the event of either a substantial alteration or misuse, the manufacturer will be responsible for resultant injuries to an operator if the alteration or 211 misuse implicated in the actual use of the machine was foreseeable and could have been prevented or reduced. ... [Id. at 151 (Emphasis supplied)]. In this case, an electrically interlocking bumper device was installed as a safety guard on the extendable conveyors fabricated for the POD. Plaintiff has provided no evidence that it was reasonably foreseeable that such guarding would be removed once the conveyors were installed at the NYB & FMC facility. It is only when such a factual issue exists that "a determination of objective foreseeability that substantial change or misuse will occur" becomes a jury question. Brown v. United States Stove Co., supra, 98 N.J. at 169. It was, therefore, clearly "plaintiff's burden to demonstrate that it was objectively foreseeable that the subsequent substantial alteration or misuse of the product would create the risk of ... injury." Ibid. Since such evidence was indisputably lacking here, the trial court properly granted summary judgment as to this alleged defect, since the design of the conveyor clearly conformed to the applicable specifications. Plaintiff's allegations of design defect, however, were not based on the inadequacy of this guarding alone. Her expert additionally opined that, notwithstanding the original placement of the horizontal bumper bar at the head end of the conveyor, additional protective guarding was also necessary on the right side of the conveyor. In proffering this opinion, Bodner asserted that "at the time of the accident" the subject conveyor did not conform to accepted safety standards. Once again, however, it must be noted that plaintiff's expert's observations with respect to the condition of the conveyor at the time of the subject accident are irrelevant with respect to the issue of design defect. Accordingly, plaintiff presented no proof by virtue of expert evidence or otherwise that the presence or absence of side guarding was a design defect which existed when the subject extendable conveyor was fabricated. On the other hand, the deposition testimony of Charles Schroer, the resident Corps engineer at the NYB & FMC facility, indicated 212 that such guarding would not have been practical on a extendable conveyor. Since plaintiff clearly has not met her burden of proving that a side guard design defect existed at the time the extendable conveyor was fabricated, see O'Brien v. Muskin Corp., supra, 94 N.J. at 179; Michalko v. Cooke Color & Chemical Corp., supra, 91 N.J. at 394 the trial court also properly found that plaintiff had raised no genuine issue of material fact with respect to this alleged guard design defect. Plaintiff's expert finally noted that, after the subject incident, mushroom shaped "stop and go" buttons were placed directly behind the head end pulley on the extendable conveyors. Such buttons were not included on the original conveyor design, leading Bodner to conclude that the machines were defectively designed since the controls, as originally placed, were not positioned in a location which was readily accessible to the operator's working position. With respect to this allegation concerning the location of the "stop and go" control buttons, it must merely be reemphasized that uncontroverted pretrial discovery revealed that these controls were placed on the conveyors at the position specifically designated by Charles Schroer, the resident engineer with the Corps. Since the exact location of the controls was expressly chosen and designated by a governmental entity, if such placement is considered to be improper, the responsibility must lie with the Army Corps of Engineers, who would clearly be entitled to governmental immunity for such an action. In conclusion, we are satisfied that defendants have adequately excluded all reasonable doubt as to the existence of the material factual issues discussed herein. Accordingly, the trial court was not precluded from granting summary judgment and the summary judgment entered as to all defendants, therefore, is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520266/	511 A.2d 294 (1986) Maria E. QUINTANA v. WORCESTER TEXTILE CO. No. 83-543-Appeal. Supreme Court of Rhode Island. June 24, 1986. Raul L. Lovett, Lovett Schefrin & Gallogly, Ltd., Providence, for petitioner. Michael D. Lynch, East Greenwich, for respondent. OPINION BEVILACQUA, Chief Justice. This is an employee's appeal from a decree of the Workers' Compensation Commission, affirming the trial commissioner's decision to deny compensation benefits to the employee for failure to prove that she had sustained an injury arising out of and in the course of her employment with the employer. The record reveals that employee, Maria Quintana, worked as a "twister" for employer Worcester Textile Company. She testified that on May 1, 1982, while bending down to clean some yarn from the lower part of her twisting machine, she felt pain in her neck, and that upon arising, she heard "something go crack in my neck." Shortly thereafter, employee sought treatment at a medical center; an X-ray examination was conducted, and employee was provided with a cervical collar. Following the alleged injury, employee was paid compensation benefits pursuant to a nonprejudicial agreement. Approximately two weeks subsequent to the alleged injury, employee commenced medical treatment with Dr. Anthony F. Merlino. Doctor Merlino examined employee on at least seven occasions between May and November, 1982. Although the physician opined that employee was disabled, his testimony revealed that apart from some restriction of motion in her neck, tenderness around the two lower cervical vertebrae and a relative weakness in the right hand, there were no objective findings to support the subjective complaints verbalized by employee.[1] Doctor Merlino concluded that, within a reasonable degree of medical certainty, he believed that there was a causal relationship between the injury he found and the incident at work. Doctor 295 Merlino's opinion that employee was incapacitated remained unchanged until November 29, 1982, whereupon the physician noted that employee could resume her employment as long as she guarded against prolonged sitting, standing, climbing, heavy lifting or turning of the head or neck. The trial commissioner appointed Dr. William Garrahan, an impartial physician, to conduct an examination of employee. Said examination was conducted on November 4, 1982, and admitted as a full exhibit. In his medical report, the doctor concluded that: "[i]f one listens to the subjective complaints of this individual, you would have to state that she is completely disabled. I find absolutely no objective evidence to confirm any of these subjective complaints. I think the degree of pain and disability is magnified. I find no evidence to indicate an organic basis for all of this pain. Based on the examination today, it would be my feeling that this individual could do her usual and customary work." Relying primarily on the report of Dr. Garrahan and the testimony of employee at the hearings, the commissioner concluded that employee had failed to prove that she had sustained compensable injuries arising out of and in the course of her employment. The commissioner thus denied and dismissed employee's petition. The commission affirmed the trial commissioner. The employee appealed. We affirm. On appeal, employee contends that there was uncontradicted evidence before the commissioner to support her argument that she had suffered a compensable injury in the course of her employment. She submitted that the testimony of Dr. Merlino satisfied employee's burden of showing both causation and disability. Conversely, employer contends that the issue is basically one concerning credibility, which the commissioner may deem to be insufficient even where the evidence is uncontradicted. This court has repeatedly stated that when faced with an appeal from the commission, it will search the record to determine if there is competent legal evidence to support the findings of the commission. If we find that such evidence exists, the commission's findings will not be disturbed. Bello v. Zavota Brothers Transportation Co., 504 A.2d 1015 (R.I. 1986); Monticelli v. Trifari, Krussman & Fishel, Inc., 495 A.2d 994, 996 (R.I. 1985); Simon v. Health-Tex, Inc., 490 A.2d 50, 51 (R.I. 1985). Thus, our duty today is to determine whether there is competent legal evidence to support the finding of the commission that employee's testimony was not credible and that she was not disabled from working because of a work-related injury. The employee's initial burden in a workers' compensation proceeding is to advance "credible evidence of probative force" to support his or her petition. Botelho v. J.H. Tredennick, Inc., 64 R.I. 326, 331, 12 A.2d 282, 284 (1940). The issue of credibility should be determined by the trial commissioner and his findings will be given great weight on review. Laganiere v. Bonte Spinning Co., 103 R.I. 191, 195, 236 A.2d 256, 258 (1967)(citing Lonardo v. Palmisciano, 97 R.I. 234, 197 A.2d 274 (1964)). In the past, we have noted that the commissioner is uniquely qualified to both assess the credibility of a witness and determine what evidence to accept and what evidence to reject because he is in the best position to observe the appearance of a witness, his or her demeanor, and the manner in which he or she answers questions. Davol, Inc. v. Aguiar, 463 A.2d 170, 174 (R.I. 1983). The commissioner may reject some or all of a witness's testimony as being unworthy of belief, Di Libero v. Middlesex Construction Co., 63 R.I. 509, 9 A.2d 848 (1939), and to the extent that such an evaluation is a finding of fact, we will not review that finding if it is supported by competent evidence. Delage v. Imperial Knife Co., 121 R.I. 146, 148, 396 A.2d 938, 939 (1979) (citing Barnes v. Kaiser Aluminum & Chemical Corp., 96 R.I. 469, 194 A.2d 675 (1963)). 296 In the instant case, employee claims to have satisfied her burden of showing a compensable, work-related injury via the uncontradicted testimony of both Dr. Merlino and employee herself. However, this court has stated in the past that even uncontradicted testimony may be rejected by the trier of fact. In Hughes v. Saco Casting Co., 443 A.2d 1264, 1266 (R.I. 1982), this court stated that "[p]ositive, uncontradicted evidence * * * may be rejected if it contains inherent improbabilities or contradictions that alone or in connection with other circumstances tend to contradict it. Such testimony may also be disregarded on credibility grounds as long as the factfinder clearly but briefly states the reasons for rejecting the witness's testimony." In the instant case, the trial commissioner complied with the aforestated procedure by clearly enunciating his reasons for rejecting employee's testimony. In his decision, the commissioner noted that employee's display regarding how the injury occurred "showed minimal activity on her part and was performed by her with ease." Moreover, we find employee's contention that Dr. Merlino's medical testimony was uncontradicted and therefore legally sufficient to prove a compensable, work-related injury to be without merit. In addition to the fact that Dr. Garrahan's report seriously questioned the existence of an organic basis for employee's alleged injuries, it is also important to note that Dr. Merlino's medical opinion was based in large part on the subjective complaints verbalized by employee. Faced with a similar situation in the past, this court has said "[w]here medical testimony is based to a large extent on statements of medical history by the employee whose credibility carries little if any weight with the commission, it is open to evaluation, and the commission is justified in not accepting it." Mazzarella v. ITT Royal Electric Division, 120 R.I. 333, 339, 388 A.2d 4, 7-8 (1978). We find no error in the proceedings below. The commission's main task when reviewing findings based on a determination of credibility is to discern whether the trial commissioner was clearly wrong in his or her findings or that he or she misconceived or overlooked material evidence in arriving at such credibility determinations. Davol, Inc., 463 A.2d at 174. Since there appears to have been no error at the hearing level, there is no reason to reverse the commission. Finally, the employee has argued that the fact that the employer entered into a nonprejudicial agreement with the employee somehow compels a finding that she is entitled to continued compensation. We strongly disagree. A nonprejudicial agreement pursuant to G.L. 1956 (1979 Reenactment) § 28-35-8 allows payment of compensation benefits to an employee for a period not to exceed three months while the employer investigates the claim. This type of agreement, by its very nature, is intended to be nonbinding and inconclusive. Thus, the employee's position on that score is groundless. Accordingly, the employee's appeal is denied and dismissed, the decree appealed from is affirmed, and the case is remanded to the Workers' Compensation Commission. NOTES [1] Myelograms performed by both Dr. Merlino and Dr. Garrahan yielded negative results.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520080/	464 F.Supp. 1314 (1979) PACIFIC LUMBER & SHIPPING COMPANY, INC., Heidner International Corp., R. W. Export, Ltd., Intercontinental Lumber Company, Boise Cascade Corp., Publisher's Forest Products, Inc., the Windsor Company, Dant & Russell, Inc., Patrick Lumber Co., Columbia Harbor Lumber Co., Georgia-Pacific Corp., Big Bay Timber, Ltd., Zenith Lumber Company, Inc., Oregon Pacific Industries, Merrill Lynch Wood Markets, Inc., Tree Products Co., Inc., American & Tropical Forest Products Co., Inc., Fireman's Fund Insurance Co., Centennial Insurance Co., Hartford Fire Insurance Co., Royal-Globe Insurance Co., Plaintiffs, v. STAR SHIPPING A/S and the M/S Star Clipper, Defendants. Buchanan Shipping Co., Claimant. No. C79-140. United States District Court, W. D. Washington. February 23, 1979. David Danielson, of Lane, Powell, Moss & Miller, Seattle, Wash., for plaintiffs. Thomas J. McKey, of Bogle & Gates, Seattle, Wash., for defendants and claimant. ORDER BEEKS, Senior District Judge. The motions of defendant Star Shipping A/S and the claimant of the M.S. STAR CLIPPER to shorten time for hearing of motion to quash notice of deposition, to shorten time for hearing of motion for stay of action pending arbitration, to quash notice of depositions and for protective order, and for stay of action pending arbitration, were heard by the Court on February 13 and 15, 1979. The Court has considered the arguments of counsel and the briefs and affidavits submitted, including but not limited to, defendants' briefs and affidavits of Thomas McKey and Carol Nett dated February 14, 1979 and plaintiffs' brief and affidavits *1315 of David Danielson (including its exhibits) dated February 15, 1979 and the affidavit of Gerald Strand dated February 14, 1979. At issue is the effect of the following clause which is on the face of all of the applicable bills of lading: ALL DISPUTES ARISING UNDER THIS BILL OF LADING SHALL BE SETTLED IN ACCORDANCE WITH THE PROVISIONS OF THE ARBITRATION ACT OF 1950 IN LONDON. THE AWARD OF THE ARBITRATORS OR UMPIRE TO BE FINAL AND BINDING UPON BOTH PARTIES. The affidavit of Carol Nett establishes that the so-called "London arbitration clause" was inserted in defendant Star Shipping A/S's Mediterranean bills of lading at Star's direction. The affidavits of Nett, Gerald Strand and David Danielson indicate that the "London arbitration clause" was not negotiated or discussed with the shippers of cargo transported on vessels owned or chartered by Star. From the materials presented to the Court, there is no indication that the shippers ever had an option to have that clause deleted. Further, the affidavits of Strand and Danielson illustrate that the bills of lading which were identified in those affidavits were not received by the shippers in their completed form until after the STAR CLIPPER sailed from Coos Bay. These bills of lading are contracts of adhesion, and I find that the "London arbitration clause" was not freely negotiated between the parties. That clause is a foreign forum clause. This case is governed by the provisions of the Carriage of Goods by Sea Act (COGSA) 46 U.S.Code, § 1300, et seq. and violates § 1303(8) of COGSA. Mitsui & Co., Ltd., et al. v. M/V GLORY RIVER, et al., 464 F.Supp. 1004, No. C78-259B, (W.D.Wn. 1978); Indussa Corporation v. S. S. Ranborg, 377 F.2d 200 (2d Cir. 1967); Northern Assurance Co., Ltd. v. M/V CASPIAN CAREER, 1977 A.M.C. 421 (N.D.Cal. 1977). If ocean carriers were allowed to unilaterally select the forum for the resolution of cargo claims it would be an invitation to carriers to select forums having no relationship to the ports of loading or discharge and the carriers would be at liberty to select forums that might not fairly enforce COGSA. Accordingly, the Court rules as follows: 1. The motions of Star Shipping A/S and the claimant to shorten time for hearing of motion to quash notice of deposition and to shorten time for hearing of motion to stay of action pending arbitration are granted. 2. The motions of Star Shipping A/S and the claimant for stay of action pending arbitration and to quash notice of depositions and for protective order are denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519930/	464 F.Supp. 1389 (1978) CITIZENS LEAGUE FOR CIVIL RIGHTS, INC., a Wisconsin Corporation, and Burt Wolf, Thomas R. Skrentny, Warren Vanetten and Joyce Vanetten, his wife, and Richard Greiner, Individually and as Directors of Citizens League for Civil Rights, Inc., Plaintiffs, v. Odric BAKER, Individually and as Chairman, Lac Courte Oreilles Tribal Governing Board, Pete Larson, Individually and as Vice-Chairman, Lac Courte Oreilles Tribal Governing Board, Margaret Diamond, Individually and as Secretary-Treasurer, Lac Courte Oreilles Tribal Governing Board, Charles Diamond, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, Theresa Williams, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, Rick St. Germaine, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, and their agents, employes and subordinates, Defendants. No. 76-C-376. United States District Court, W. D. Wisconsin. September 20, 1978. 1390 M. Scott Cisney and Richard E. Sommer, Korth, Rood, Sommer & Mouw, S.C., Rhinelander, Wis., for plaintiffs. Larry B. Leventhal, Minneapolis, Minn., for defendants. OPINION AND ORDER JAMES E. DOYLE, District Judge. This is an action for declaratory, injunctive, and monetary relief in which the subject matter is virtually, but not wholly, identical to the subject matter of State of Wisconsin v. Baker et al., 464 F.Supp. 1377 (W.D.Wis.). According to the complaint, plaintiffs include: a Wisconsin corporation whose membership is primarily composed of "the owners of private real estate on and around Lac Courte Indian Reservation," who are nonmembers of the Lac Courte Oreilles Band; an operator of a campsite on Lac Courte Oreilles, an owner of a resort on Chief Lake, and the owners of resorts and campgrounds on Lac Courte Oreilles, all of whom are nonmembers of the Band. Defendants are alleged to be the officers and members of the governing board of the Band. Plaintiffs' grievance is directed to the action of the defendants in promulgating and enforcing a tribal "Court Code" and a tribal "Conservation Code," insofar as the defendants are preventing and threatening to prevent the plaintiffs and the patrons of their campsites and resorts, unless they first obtain licenses from the Band for a fee, from fishing and hunting on the navigable waters within and around the exterior boundaries of the reservation and from exercising the rights of riparian owners. Jurisdiction is asserted to arise under 28 U.S.C. § 1343, 28 U.S.C. § 2201, 25 U.S.C. § 1302, the Northwest Ordinance of 1787, the Wisconsin Constitution, and the United States Constitution. Plaintiffs contend that the actions of the defendants: violate the equal protection clause because they are discriminating invidiously on the basis of race, in violation of 42 U.S.C. §§ 1983 through 1985; violate the due process and equal protection of the laws guaranteed by the Constitution of the United States in that the federal Constitutional guarantee of separation of powers is violated by the provision of the tribal Court Code for appeals from the tribal court only to the tribal governing board which is a political body, in that nonmembers of the Band are deprived of freedom to choose the judicial system to which they are to be subjected 1391 and are deprived of a voice in the choice of the persons who comprise the tribal court, and in that nonmembers of the Band are deprived of trial by a jury of their peers. Reference is also made in the complaint to a deprivation of plaintiffs' right to "life, liberty and the pursuit of happiness" and a deprivation of "the rights, privileges and immunities secured to said nonmembers of the [Band] by the United States Constitution and the laws thereunder. . . ." In their briefs, plaintiffs also associate themselves with the contentions made by the State of Wisconsin in State v. Baker, 464 F.Supp. 1377. Defendants have served and filed an amended motion to dismiss on the following grounds: (1) there is no actual controversy between the parties to this action; (2) plaintiffs have failed to join indispensable parties; (3) plaintiffs have failed to exhaust available remedies within the tribal court; (4) the legislative immunity of the defendants bars the action; and (5) that the complaint fails to state a claim upon which relief can be granted.[1] For reasons explained in State of Wisconsin v. Baker, I find no merit in defendants' contention that there is no case or controversy as between the plaintiffs and them. With respect to the defendants' contention that this action should be dismissed because of the absence of the Band and the United States as parties, I note that there is a distinction between the circumstances of these plaintiffs, on the one hand, and those of the State, on the other, bearing on the fourth factor embodied in Rule 19(b) of the Federal Rules of Civil Procedure (whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder). Nevertheless, on balance and for the reasons set forth in my opinion in State of Wisconsin v. Baker, I believe that this present action should not be dismissed either because of the absence of the Band or because of the absence of the United States. Insofar as plaintiffs seek damages from the defendants because the defendants have promulgated the tribal Codes, as contrasted with having enforced them, the defense of legislative immunity is valid. In other respects, it is not. As I have indicated, the complaint cites 25 U.S.C. § 1302, which is a part of the Indian Civil Rights Act of 1968. Exhaustion of tribal remedies is required under that Act before a federal district court may grant relief. Because the complaint fails to allege exhaustion of such remedies, it fails to state a claim under that Act. The complaint does not, and cannot, allege that the defendants have acted "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ...." Therefore, it does not state a claim under 42 U.S.C. § 1983 or § 1984. Nor does it state a claim under §§ 1985(1) and (2), which relate to wholly different subject matter. However, construing the complaint most liberally to the plaintiffs, it must be held to state a claim under 42 U.S.C. § 1985(3). That is to say, if it should be determined that the defendants (and the Band) enjoy no authority to impose licensing requirements on nonmembers in order to fish in the lakes in question, the complaint sufficiently alleges that the defendants have conspired to deprive the plaintiffs of the equal protection of the laws. In this respect, 28 U.S.C. § 1343(1) provides a jurisdictional base. ORDER It is ordered that: *1392 (1) Defendant's amended motion to dismiss is granted in part and denied in part. (2) That part of the complaint which seeks damages from the defendants because they allegedly promulgated certain tribal Codes is dismissed on the ground that the defendants enjoy legislative immunity. (3) Except insofar as it purports to state a claim against the defendants for having conspired to deprive the plaintiffs of the equal protection of the laws in violation of 42 U.S.C. § 1985(3), the complaint is dismissed for failure to state a claim upon which relief can be granted. (4) There is incorporated by reference in this order all of the provisions set forth in paragraphs 5, 6, 7, and 8 of the order entered today in State of Wisconsin v. Baker, 464 F.Supp. 1377. NOTES [1] Defendant Rick St. Germaine has served and filed a separate motion to dismiss, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the ground that "there has been an insufficiency of process on himself." I assume that reference to Rule 12(b)(4) or possibly 12(b)(5) was intended, rather than 12(b)(1). The nature of the contention remains undeveloped in the supporting briefs. I note that the only record of service of process is a sheriff's certificate that he served three copies of the summons and complaint upon defendant Odric Baker. It is possible that there has been a failure to serve any defendant other than defendant Odric Baker. However, I will reserve a ruling on the separate motion by defendant Rick St. Germaine, and I will presently initiate no further inquiry into the adequacy of service of process on the other defendants.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519935/	587 S.W.2d 488 (1979) HI-LINE ELECTRIC COMPANY, Appellant, v. The TRAVELERS INSURANCE COMPANIES, Appellee. No. 19964. Court of Civil Appeals of Texas, Dallas. August 14, 1979. Rehearing Denied September 19, 1979. 489 John D. Griggs, Dallas, for appellant. Timothy R. McCormick, Thompson & Knight, Dallas, for appellee. Before AKIN, ROBERTSON and HUMPHREYS, JJ. HUMPHREYS, Justice. This appeal concerns whether appellant Hi-Line Electric Company is a consumer under the Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com. Code Ann. §§ 17.41-17.63 (Vernon Supp. 1978-1979) (DTPA). Appellant Hi-Line alleged that it purchased services and leased goods from third parties in reliance on misrepresentations of an adjuster for appellee, Travelers Insurance Company. Summary judgment was granted for appellee Travelers on the ground that appellant did not have a cause of action under the DTPA or the Insurance Code. We affirm and hold that appellant is not a consumer for the purposes of the DTPA because appellant did not seek or acquire goods or services from appellee. We also hold that appellant has no cause of action under either the Unfair Claim Settlement Practice Act, Tex. Ins. Code Ann. art. 21.21-2 (Vernon Supp. 1978), or under the unfair practices provisions of the Insurance Code, Tex. Ins. Code Ann. art. 21.21 (Vernon 1963 & Supp. 1978) because article 21.21-2 does not confer a private cause of action and any private action under article 21.21 must be based on the DTPA, which, we hold, does not apply to this case. This case arose from an automobile accident between appellant and appellee's insured. Appellant sued appellee's insured for negligence and sued appellee, the insurance carrier, for breach of contract, fraud, and for violations of the DTPA and of the Insurance Code. After appellant's action against appellee was severed, partial summary judgment was granted denying appellant's claims against appellee under section 17.50 of the DTPA and the Insurance Code. The case then proceeded to trial on the grounds of breach of contract and fraud, and appellant was awarded judgment in the amount of $519.64. Appellant complains only of the court's grant of partial summary judgment and its failure to set aside the summary judgment. According to appellant, after the accident, appellee agreed to pay for repairs to appellant's truck, rental of another truck, and the cost of transferring merchandise between the damaged truck and the leased truck. It also contends that appellee made recommendations as to where to have repairs performed and where to rent the vehicle. 490 Appellant claims that it was forced to pay the repair and rental costs when appellee refused to do so, and that its own insurance company would have paid these bills if appellee had not promised to pay them. Appellant also alleged that appellee agreed to pay without intending to do so and consequently, violated the DTPA. Appellee seeks to justify the summary judgment on the ground that the petition shows on its face that appellant is not a "consumer" with respect to appellee within the ambit of the DTPA. Appellee points out that in order to sue under section 17.50 of the DTPA, plaintiff must be a consumer, which is defined in section 17.45(4) as "an individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease, any goods or services." Appellee cites Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737 (Tex.Civ. App.-Austin 1977, writ ref'd n. r. e.), for the proposition that appellant is not a consumer. Russell is not controlling here because in that case, plaintiffs did not purchase or lease any goods or services. As in the present case, the plaintiffs in Russell were involved in a collision with defendant's insured. After defendant Hartford provided a rental car for seven days and then cancelled the agreement, plaintiffs sued Hartford under the DTPA. The court held that the plaintiffs in that case were not consumers because they did not purchase or lease anything. 548 S.W.2d at 741. In this case, appellant purchased services and leased goods from third parties at appellee's suggestion but not from appellee. Our question then is whether the DTPA provides a cause of action when the services and leased items were sought and obtained from third parties. Appellee contends that a consumer must seek or acquire goods or services from the person he is suing. We agree. Although the plaintiff and defendant need not be in privity or in a contractual relationship, a consumer must seek or acquire goods or services furnished by defendant. In this case, appellee only represented to appellant that it would pay money to appellant for appellant's purchase of goods and services from others. The DTPA was not intended to cover situations where the defendant is not engaged in any sale or lease transaction, or any offer or advertisement of a sale or lease, with plaintiff. The Act was designed to protect consumers from misleading business practices made in connection with a sale, lease, advertisement, etc. We hold that appellant is not a consumer with respect to appellee because the alleged misrepresentation was not made in connection with any actual or prospective sale or lease transaction in which appellant was seeking or acquiring goods, or services supplied by appellee. We also deny appellant's claims under articles 21.21-2 and 21.21 of the Insurance Code. Article 21.21-2 of the Insurance Code regulates unfair claims practices of insurance companies. It empowers the State Board of Insurance to revoke licenses of violators and issue other orders, but it does not confer a private cause of action. Lone Star Life Insurance Co. v. Griffin, 574 S.W.2d 576, 580 (Tex.Civ.App.-Beaumont 1978, writ ref'd n. r. e.); Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737, 742 (Tex.Civ.App.-Austin 1977, writ ref'd n. r. e.). Article 21.21 is primarily directed to unfair competition and trade practices of insurance companies such as false advertising, defamation, and discrimination. Section 16(a) of article 21.21 states: "Any person who has been injured by another's engaging in ... any practice defined by Section 17.46 of the Business & Commerce Code, as amended, as an unlawful deceptive trade practice may maintain an action against the company or companies engaging in such acts or practices." The application of article 21.21, therefore, depends on whether there was a violation of the DTPA. We note that article 21.21(16)(a) grants a cause of action to a "person" injured by a deceptive act under section 17.46 of the DTPA. A "person" as used in article 21.21(16)(a) must be a consumer as defined in section 17.50 of the DTPA because article 21.21 of the Insurance Code and the DTPA *491 refer to each other. Section 17.50(a)(4) of the DTPA allows only a consumer to recover for violations of article 21.21 of the Insurance Code. Accordingly, the two statutes must be read together. See General Accident, Fire & Life Assurance Corp. v. Legate, 578 S.W.2d 505, 506 (Tex.Civ.App.-Texarkana 1979, writ ref'd n. r. e.); Mobile County Mutual Insurance Co. v. Jewell, 555 S.W.2d 903, 910 (Tex.Civ.App.-El Paso 1977, writ ref'd n. r. e.). Neither were intended to apply to a situation where the plaintiff and defendant were not engaged in a prospective or actual sale or lease of goods or services between them. Since we have held that appellant is not a consumer within section 17.50 of the DTPA, we likewise hold that it is not a person within article 21.21(16)(a) and has no cause of action under that article. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519937/	587 S.W.2d 703 (1979) Ex parte Frank Roger MILLARD. No. 61495. Court of Criminal Appeals of Texas, En Banc. June 6, 1979. Rehearing Denied October 10, 1979. 704 Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. OPINION ODOM, Judge. This is a post conviction habeas corpus application brought pursuant to Article 11.07, V.A.C.C.P. On April 12, 1977, petitioner was convicted of aggravated robbery in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County. At the punishment stage of the trial, a jury found the allegations of two prior convictions alleged for enhancement under V.T.C.A., Penal Code, Sec. 12.42(d), to be true, and petitioner was sentenced to life. In this habeas corpus application, petitioner contends the conviction must be set aside because one of the prior convictions used to enhance his punishment is void. Specifically, he contends his prior conviction in cause number C-71-9595-LH is void because the indictment in that case is fundamentally defective. That indictment alleged in relevant part that appellant did: "... by force, threats and fraud attempt to break and enter a house there situate and occupied and controlled by Farrel K. Baker without the consent of the said Farrel K. Baker and with the intent then and there on the part of him, the said Frank Roger Millard fraudulently to take from said house corporeal personal property therein being, and belonging to the said Farrel K. Baker from the possession of the said Farrel K. Baker without the consent of him, the said Farrel K. Baker and with the intent to deprive the said Farrell K. Baker the owner of said corporeal personal property of the value thereof, and with intent to appropriate the same to the use and benefit of him, the said Farrel K. Baker, and the said Farrel K. Baker then and there, in carrying out said design to break and enter said house with the intent aforesaid did punch hole in vent of said house, with the intent then and there to so enter..." (Emphasis added) The trial court recommended that relief be denied because no objection on this ground was raised when proof of the prior 705 conviction was presented during the 1977 trial. It is established however, that a collateral attack may be brought against enhancement of punishment that is based on a void prior conviction. See, e. g., Ex parte Swinney, Tex.Cr.App., 499 S.W.2d 101.[1] It is also established that an indictment must allege all essential elements of the offense. Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751, and authorities cited there. The indictment in the prior conviction, set out above, was intended to allege attempted burglary under the 1925 Penal Code. The emphasized portion, however, reveals that the name of the owner of the property was alleged where petitioner's name should have been alleged. It alleges that the owner of the house and property committed the acts alleged, and that the intent was to appropriate property for the use and benefit of the owner. Thus, the indictment fails to allege the elements of the crime of theft, as was essential in an indictment for burglary with intent to commit theft under the former penal code. Alexander v. State, 126 Tex.Cr.R. 495, 72 S.W.2d 1073. See also, Ex parte Valdez, Tex.Cr.App., 550 S.W.2d 88; Weaver v. State, 132 Tex.Cr.R. 253, 103 S.W.2d 974; Rodriguez v. State, 128 Tex.Cr.R. 262, 80 S.W.2d 988. We hold that the indictment for attempted burglary in cause number C-71-9595-LH in Criminal District Court No. 5 of Dallas County is therefore void. Because one of the prior convictions used for enhancement of punishment in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County is void, and because the punishment stage in the trial of that case was decided by a jury, the conviction must be set aside. Hickman v. State, 548 S.W.2d 736. Accordingly, the conviction in that cause is set aside and petitioner is remanded to custody to answer the indictment pending against him in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County. A copy of this opinion will be sent to the Department of Corrections. It is so ordered. DOUGLAS, J., dissents. OPINION ON STATE'S MOTION FOR REHEARING CLINTON, Judge. On original submission, we held an indictment for attempted burglary, basing a judgment of conviction that was used for enhancement of punishment, is void because it failed to allege every essential element of the crime of theft, the offense intended to be committed after entry. Requisites of the indictment are governed by the former penal code, attempted burglary being described by Article 1402 thereof. We granted the State leave to file its motion for rehearing in view of its vigorous contention that the indictment, conceded to be defective, is not fundamentally defective. In its motion the State argues: "The indictment alleges all of the elements of the offense of attempted burglary. The only defects in the indictment are that the victim's name appears in two places where the petitioner's name should appear. This was an error in drafting the indictment. Perhaps this was a careless error, but it is not one that should result in the granting of habeas corpus relief." The State also urges that petitioner "should be estopped" from asserting the defect for he passed over what the State counts as five opportunities to challenge the indictment 706 but did not do so "until this instant proceeding.[1]" From our further examination of the indictment, applicable statutes and pertinent judicial construction, we have concluded that the indictment is fatally defective for yet another reason. That is, on its face it does not meet one of the essential requisites of an indictment prescribed by Article 21.02, V.A.C.C.P., to wit: "7. The offense must be set forth in plain and intelligible words." Thus, "the inquiry must be whether the charge in writing furnished that information in plain and intelligible language," Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975), Benoit v. State, 561 S.W.2d 810, 813 (Tex.Cr.App.1977). If in this fashion the pleading states facts which if true show a violation of the law by the accused, it is not fundamentally defective.[2]Posey v. State, 545 S.W.2d 162, 163 (Tex.Cr. App.1977). See generally Dovalina v. State, 564 S.W.2d 378, 384-385 (Tex.Cr.App.1978) (Concurring opinion of Odom, J.). Patently the indictment here is far from "plain and intelligible," for it avers that someone named Farrel K. Baker "in carrying out said design to break and enter said house with the intent aforesaid did punch hole in vent of said house, with the intent then and there to so enter..." The indictment does not attribute such acts and conduct, or any others constituting an attempt, to petitioner, Frank Roger Millard. But the State, without citing any supporting authority, would have us conclude that an indictment that is otherwise patently void will support a conviction if we find that the fatal defect is plainly the result of a scrivener's error. That proposition, however, ignores settled principles that are fundamental in the jurisprudence of this State concerning an indictment. "The State is required to so plead its case by the indictment that the Court will not be required to indulge in any presumption to complete the pleading," Sanchez v. State, 155 Tex.Cr.R. 364, 235 S.W.2d 149, 153 (1951). "The pleading must be tested, when it is claimed it is insufficient, by the pleading itself. And whatever testimony was introduced at the trial cannot be referred to as either supporting the allegations or to show their insufficiency, so far as the validity of the indictment itself is concerned," Ritter v. State, 76 Tex.Cr.R. 594, 176 S.W. 727, 730 (1915). So it is that, even though a clerical error is the only explanation for it, an indictment is fundamentally defective if it alleges an offense to have been committed on an impossible date, McGinsey v. State, 60 Tex.Cr.R. 505, 132 S.W. 773 (1910),[3] or an incompleted date such as "the ______ day of ________, A.D. 1900," Barnes v. State, 42 Tex.Cr.R. 297, 59 S.W. 882 (1900).[4] See cases annotated under note 28, 707 Article 21.02, V.A.C.C.P., the earliest being Robles v. State, 5 Tex.App. 346, 358-359 (1879), explaining that to hold otherwise would create a precedent and encourage carelessness. One hundred years later we decline to set a precedent and we continue to discourage carelessness.[5] But, more importantly, discovering the defect or having it called to the attention of this Court, we will not assume the risk involved by undertaking to cure the defect through interpretation and construction of the otherwise fatal infirmity. It is quite enough that we note the repugnancy, Brown v. State, 96 Tex.Cr.R. 409, 257 S.W. 891 (1924), or the inherent contradiction, Finklea v. State, 579 S.W.2d 497 (Tex.Cr.App.1979), and send it back to the draftsman for corrective action that reflects the true intendment. Accordingly, the State's motion for rehearing is overruled. NOTES [1] We are not unaware of our decision in Ex parte Gill, Tex.Cr.App., 509 S.W.2d 357, which held that failure to object to admission of evidence of a prior conviction on grounds of denial of counsel at the revocation of probation in a prior conviction used for enhancement "constitutes a waiver of the claimed rights" (id., at 359) to assistance of counsel. At issue here, however, is not some right that can be waived, but the very power of the trial court to have heard the 1971 case, for the indictment, if fundamentally defective, deprives the trial court of jurisdiction over the case. See, e. g., Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266; American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598; cf. Drumm v. State, Tex.Cr.App., 560 S.W.2d 944. [1] The statement, particularly the underlined portion, is not completely correct. Dated October 21, 1978 and filed October 28, 1978, through court-appointed counsel petitioner presented a petition for writ of habeas corpus to the court below that previously had been prepared by petitioner without benefit of counsel. Therein, under the heading "enhancement paragraphs" petitioner points to the indictment by number, alleges it is "void because the entire concluding paragraph is wrong," and then proceeds to quote substantially the same language that the original opinion did. After the application, with its accompanying papers, was received by this Court, December 7, 1978, a review of it resulted in the notation "direct appeal pendingno action necessary," made December 20, 1978. A month or so later, the judgment of conviction of the primary offense was affirmed per curiam and mandate issued February 9, 1979. The per curiam affirmance did not address petitioner's habeas corpus contention that was rejected because of pendency of direct appeal. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.) [2] A defect of substance provided by Article 27.08, V.A.C.C.P., is when it does not appear from the face of the indictment "that an offense against the law was committed by the defendant." [3] In the circumstances there February 29, 1910 was an impossible date, as was the 7th day of March A.D. "19663," in Moreno v. State, 375 S.W.2d 309 (Tex.Cr.App.1964). [4] In Bradford v. State, 62 Tex.Cr.R. 424, 138 S.W. 119 (1911) the indictment alleged "one thousand nine hundred and ________, just as it did in Jackson v. State, 489 S.W.2d 565, 567 (Tex.Cr.App., on motion for rehearing, 1973): "The fact that the error or omission is a clerical one is immaterial." [5] To implement this age old policy consideration, this Court must insist that the State correct its mistake rather than "estop" a habeas corpus petitioner from pointing it out. Otherwise a citizen remains incarcerated through carelessness of othersincluding as here his own counseldespite his correct assertion that he is illegally confined because of their impermissible errors.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519956/	587 S.W.2d 37 (1979) Mrs. Francine Hardy SANDUSKY, Administratrix of the Estate of First Lt. Thomas Marvin Sandusky, Deceased, Appellant, v. FIRST ELECTRIC COOPERATIVE, Appellee. No. 79-155. Supreme Court of Arkansas, Division 2. October 1, 1979. Phillip H. McMath, P.A., Little Rock, for appellant. Overton S. Anderson and Donald H. Bacon, Little Rock, for appellee. HOLT, Justice. Appellant, as administratrix of the estate of her deceased husband, filed this tort action on behalf of their two minor children. The action was brought after the expiration of the three year statute of limitations contained in the Arkansas Wrongful Death Act, Ark.Stat.Ann. § 27-907 (Repl.1962). The trial court sustained appellee's demurrer on the ground that the action was barred by the statute of limitations. The only issue presented by this appeal is whether or not the general savings clause in Ark.Stat.Ann. § 37-226 (Repl.1962) tolls the statute of limitations in § 27-907, which provides: *38 Every such action [wrongful death] shall be brought by and in the name of the personal representatives of such deceased person, and if no personal representative, then same shall be brought by the heirs at law of such deceased person. Every action authorized by this act [§§ 27-906 27-910] shall be commenced within three [3] years after the death of the person alleged to have been wrongfully killed and not thereafter. § 37-226 reads: If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed. Appellant contends that the three year statute of limitations in § 27-907 is tolled when the plaintiffs, as here, are minors and that the cause of action does not accrue during their minority. The general rule is that a provision in a wrongful death statute which requires an action to be brought within a specified time is more than "an ordinary statute of limitations and goes to the existence of the right itself." 25A C.J.S. Death § 53b. In Anthony v. St. Louis I. M. & S. Ry. Co., 108 Ark. 219, 157 S.W. 394 (1913), we held that the "bringing of the suit within [three] years . . . is made an essential element of the right to sue." We cited with approval Earnest v. St. Louis, Memphis and Southeastern Railway, 87 Ark. 65, 112 S.W. 141 (1908), which held that the time fixed by the statute becomes a limitation or condition on the right of action and will control. In Anthony, we specifically held that a general savings clause statute, as here, did not apply to suits brought under the wrongful death statute which statute accords a right of action that did not exist at common law. The Anthony rule has been consistently cited with approval and controlling in numerous decisions. Hicks v. Missouri Pacific Railroad Company, 181 F.Supp. 648 (W.D. Ark.1960), appeal dismissed 285 F.2d 427; Missouri Pacific Railroad Co. v. Armstrong, 184 Ark. 1076, 44 S.W.2d 1093 (1932); Smith v. Missouri Pacific Railroad Co., 175 Ark. 626, 1 S.W.2d 48 (1927). We hold it is controlling here. Appellant also argues that since the general savings clause in § 37-226 has been applied to actions for medical malpractice, Ark.Stat.Ann. § 37-205 (Repl.1962), it should be applied to the wrongful death statute because the two statutes are similar since neither statute contains a savings clause and each contains a statute of limitations. It is true that in Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), we held that the savings clause statute, § 37-226, tolled the two year statute of limitations, § 37-205, in malpractice actions. There is, however, a distinction between the two statutes. As appellee correctly observes, actions for malpractice are not statutory in origin. These statutes merely fix "the time in which action must be taken to enforce liability which they recognize as already existing." Partin v. Wade, 172 F.2d 50 (8th Cir. 1949). However, it is well established in Arkansas that a right of action for wrongful death is of statutory origin only since no such cause of action existed at common law. Smith v. Missouri Pacific Railroad Co., supra. The limitation of time fixed by a wrongful death statute is a limitation on the right of action and is an essential element of the right to sue. Therefore, since the general savings clause provision of § 37-226 has no application to wrongful death actions, the court correctly sustained the demurrer. Affirmed. We agree: HARRIS, G. J., and FOGLMAN and PURTLE, JJ.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519957/	464 F.Supp. 761 (1979) COLEGIO PUERTORRIQUEÑO DE NIÑAS, LICEO PONCEÑO, INC., et al., Plaintiffs, v. Carmen T. PESQUERA DE BUSQUETS, Secretary to Department of Consumer Affairs of Commonwealth of Puerto Rico, Defendant. Civ. No. 78-2103. United States District Court, D. Puerto Rico. February 6, 1979. 762 Luis Roberto Piñero, Hato Rey, P. R., for plaintiffs. José M. Herrero, Secretary of Justice, San Juan, P. R., for defendant. 763 OPINION AND ORDER TORRUELLA, District Judge. This is an action seeking declaratory and injunctive relief, as well as damages, brought under the provisions of Section 1983 of Title 42, United States Code, and Sections 1331 and 1343 of Title 28, United States Code. The Plaintiffs are eighteen private schools which have been duly licensed or accredited by the Commonwealth Department of Education to operate in Puerto Rico, and a professional organization which assembles over one hundred private schools of all educational levels throughout Puerto Rico. The Defendant is the Secretary of the Department of Consumer Affairs of the Commonwealth of Puerto Rico. This case presents the same factual background involved in His Excellency Bishop Ricardo Suriñach, etc. v. Carmen T. Pesquera de Busquets, 460 F.Supp. 121 (D.C.P.R., 1978). As in that case, the Defendant herein has requested information, documents and books from Plaintiffs concerning the number of students and teachers in the respondent schools, number of classrooms, salaries paid to teachers and academic preparation of teachers, transportation and other services provided to students, scholarships offered and criteria used for awarding scholarships, general information about the sources and funds for the financing of the private schools for the years 1975, 1976 and 1977, cost per student for registration and admission, monthly fees, fees for activities and for permanent improvements, medical insurance, and fees for student evaluations, meals and materials. The inquiry also covered information about the cost of uniforms, cost of books and sale price thereof, and data concerning numbers and salary of employees for three categories of personnel. The request was part of an investigation by the Department of Consumer Affairs into the costs of the private schools operating in Puerto Rico, initiated pursuant to Sections 3, 6 and 14(a) of Act Number 5, enacted by the Legislative Assembly of the Commonwealth of Puerto Rico on April 23, 1973. 3 L.P.R.A. 341 et seq. Section 3 of the Act, 3 L.P.R.A. 341b, expressly directs the Department to protect the rights of consumers, curb inflationary tendencies and establish a price control system over goods and services. Section 6 of the enabling statute, 3 L.P.R.A. 341e, empowers the agency to issue subpoenas to compel the appearance of witnesses and production of documents and/or information, to inspect records, inventories, documents and physical facilities of persons or entities subject to the provisions of the Act, and to perform all other acts necessary and convenient for the most effective achievement of the purposes of the Act. (Subsections 6(h), (v), (w) and (x)). The administrative faculties of the Department are more specifically delineated in Section 14(a), 3 L.P.R.A. 341m, which enables the Department to engage in all types of studies and investigations on matters affecting consumers. In furtherance of these faculties, the Secretary of the Department is given the authority to, inter alia, request all necessary and relevant information and inspect records, inventories, documents and physical facilities of entities under the Agency's jurisdiction; approve all necessary and reasonable rules and regulations and receive testimony and evidence related to consumer-related matters. Plaintiffs contend that the purpose of Defendant's inquiry is for price fixing of private education in alleged violation of the Due Process Clause of the Fourteenth Amendment, insofar as such price fixing deprivates private schools of their property right of conducting their affairs. Plaintiffs further argue that Defendant's actions have the purpose of provoking the standardization of private education and interfering with the liberty of parents and guardians to select and direct the education of their children. In the second cause of action of the complaint it is asserted that Defendant's action constitutes an invasion of Plaintiffs' privacy rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution of the United States. Our only duty in this case is to determine whether the investigation undertaken by 764 the Defendant is violative of any constitutionally protected right of those required to respond to the questionnaire. To that inquiry we will now address ourselves. Plaintiffs question the power of the Defendant to regulate the costs of private education in Puerto Rico. Concerning this argument, it is the view of this Court that, as the matter now stands no concrete controversy is presented to us for adjudication. O'Shea v. Littleton, 414 U.S. 488, 493-494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The issue is not what type of regulatory action might be taken by the Defendant in the future under the authority conferred by statute,[1] but rather what kind of disclosure requirements the Defendant has in fact imposed. California Bankers Ass'n v. Shultz, 416 U.S. 21, 64, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). It is black-letter law that "the requiring of information concerning a business is not regulation of that business." ICC v. Goodrich Transit Co., 224 U.S. 194, 211, 32 S.Ct. 436, 440, 56 L.Ed. 729 (1912), and the distinction between both types of official action "is substantial." United States v. Five Gambling Devices, 346 U.S. 441, 462-463, 74 S.Ct. 190, 98 L.Ed. 179 (1953). In order to satisfy the threshold requirement imposed by Art. III of the Constitution, those who seek to invoke the power of federal courts must demonstrate that the injury or threat of injury must be both "real and immediate", not "conjectural" or "hypothetical." Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). This Plaintiffs have failed to do. As we stated in His Excellency Bishop Ricardo Suriñach, etc. v. Carmen T. Pesquera de Busquets, supra, "the absence of an immediate possibility of actual regulation counsels against our entertaining issues which may be affected by future events of an uncertain nature." See, United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954).[2] We therefore conclude that no case or controversy has been presented to us regarding Plaintiffs' allegations of price fixing. We are thus constitutionally prevented from entertaining those claims. O'Shea v. Littleton, supra. We will now consider the second issue presented by the first cause of action, wherein Plaintiffs allege a threat to the liberty of parents to direct the educational upbringing of their children by reason of governmental "standardization" of private education. The tensions between individual liberty and governmental attempts to achieve homogeneity in the educational context have been presented to the United States Supreme Court in controversies disputing the validity of State statutes that forbade the teaching of foreign languages before the eighth grade, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) or that required all students to attend public schools. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Understandably, the basic postulates of both decisions are that the State has no power to "standardize its children by forcing them to accept instruction from public teachers only." Id., at 535, 45 S.Ct. at 573. or "foster a homogeneous people." Meyer, supra, 262 U.S. at 402, 43 S.Ct. 625.[3] The dangers repudiated in those decisions are nowhere apparent from the record in this case. Unlike in Pierce, and contrary to the arguments of Plaintiffs, the 765 status quo presents no imminence of destruction of the right of private schools to exist and to operate. 268 U.S. at 535-536, 45 S.Ct. 571. Moreover, "[T]he preeminent right of parents to direct the [educational] upbringing of their children is not conceivably being subject to governmental curtailment or restriction by the implementation of the inquiry that Defendant purports to conduct." Suriñach, supra, at 125. See, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Norwood v. Harrison, 413 U.S. 455, 462, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973). Furthermore, there has been no showing that the actions complained of would in any way affect the content and scope of teaching in private schools. See, Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); see also, Stanley v. Georgia, 394 U.S. 557, 565-566, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1964). The foregoing suffices to disprove Plaintiffs' claims of governmental transgression of protected parental and educational liberties. To the extent that Plaintiffs base their challenge on unspecified and uncertain eventualities, the first cause of action also fails to present an actionable controversy, in light of the principles summarized hereinbefore. At this juncture, we are called upon to decide whether the administrative probe in question here constitutes an invasion of constitutionally protected rights of privacy. The importance of this question compels us to undertake a careful analysis of the various factors involved. There is no right of "privacy" as such in the constitution. Hence, the judicially recognized "zones of privacy" emanate from specific and substantive constitutional guarantees. Paul v. Davis, 424 U.S. 693, 712-713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The foundations of privacy rights, which have been termed as "protected rights of personhood", Tribe, American Constitutional Law, Ch. 15-3, p. 893 (1978), have thus been located in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); in the "liberty" protected by the due process clauses of the Fifth and Fourteenth Amendments, see, Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Meyer v. Nebraska, supra, 262 U.S. at 399, 43 S.Ct. 625,[4] as well as in the strictures of the Fourth Amendment's guarantees against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). More characteristically, privacy rights have been described as arising from the "penumbras", Griswold v. Connecticut, 381 U.S. 479, 484-485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) or "shadows", Whalen v. Roe, supra, n. 4, of the Bill of Rights. If "the right of privacy means anything, it is the right of the individual ... to be free from unwarranted governmental intrusion into matters ... fundamentally affecting a person." Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1978) (Emphasis in original). Thus, "[o]nly personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty' are included in this guarantee of ... privacy." Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973) (Emphasis supplied, citation omitted). The foregoing does not mean that corporations or other entities which do not possess human individuality do not enjoy privacy rights. See Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936). However, their sphere of protected privacy is lesser in scope than that of individuals. Pierce v. Society of Sisters, supra, 268 U.S. at 535, 45 S.Ct. 571. "[N]either incorporated nor unincorporated associations can plead an unqualified right 766 to conduct their affairs in secret. While they may and should have protection from unlawful demands made in the name of public investigation, corporations can claim no equality with individuals in the enjoyment of a right to privacy." United States v. Morton Salt Co., 338 U.S. 632, at 651-652, 70 S.Ct. 357, at 368, 94 L.Ed. 401 (1950), quoted with approval in California Bankers Ass'n v. Shultz, supra, 416 U.S. at 65-66, 94 S.Ct. 1494. Against this general background, the portent of the relevant court decisions is that informational probes by the government are objectionable when they unduly transgress specific constitutional guarantees. See, Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); (First and Fourteenth Amendments); De Gregory v. New Hamp. Atty. Gen., 383 U.S. 825, 86 S.Ct. 1148, 16 L.Ed.2d 292 (1966), and Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960) (freedom of expression); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (Fourth Amendment); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) and NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (rights of associational freedom), Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (procedural due process). In each of these decisions, the right of privacy operated as a ban on the challenged actions only by reason of its being intimately connected to some fundamental constitutional guarantee, see NAACP v. Alabama, supra, 357 U.S. at 462, 466, 78 S.Ct. 1163, or when the information is likely to be associated to particular individuals in violation of their liberty interests. See, Wisconsin v. Constantineau, 400 U.S. 433, 436-437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); but see, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). This is consistent with the derivative nature of the right of privacy. Id., at 712-713, 96 S.Ct. 1155 (1976). Plaintiffs in this case invoke the right of privacy without expounding in a specific fashion the guarantees at stake. Rather, their privacy claims are brought "under the First Amendment, the Fourth and Fifth Amendment, the Bill of Rights, the Ninth Amendment and the Fourteenth Amendment of the Constitution of the United States." It goes without saying that no governmental attempts to "control men's minds", "the moral content of a person's thoughts" or to inhibit the exercise of legitimate expressive or associational rights in violation of the First Amendment are apparent from the requested disclosure presented by this record. Stanley v. Georgia, 394 U.S. 557, 565-566, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1964); cf. NAACP v. Alabama, supra.[5] On the other hand, Plaintiffs' bare invocation of the Fifth Amendment fails to state a cause of action under that constitutional provision. Primo, the privilege against self-incrimination is not applicable to corporations, Hale v. Henkel, 201 U.S. 43, 70, 26 S.Ct. 370, 50 L.Ed. 652 (1906), nor to other collective entities, Bellis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944). Furthermore, there is no suggestion in the record that Plaintiffs are being compelled to give testimonial self-incriminating communications. Fisher v. United States, 425 U.S. 391, 409, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). As to the Fourth Amendment claim, it must be pointed out that, except for limitations concerning breadth and relevancy, the Fourth Amendment does not ordinarily restrict an administrative subpoena for records or an administrative requirement of reports. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 195, 66 S.Ct. 494, 90 L.Ed. 614 (1946). The protection against unreasonable searches and seizures is satisfied if the inquiry is within the authority of the agency, the demand is not indefinite 767 and the information sought is reasonably relevant to the administrative endeavor. United States v. Morton Salt Co., supra, 338 U.S. at 651-652, 70 S.Ct. 357. When the circumstances in this case are evaluated in light of these principles, we are compelled to conclude that no Fourth Amendment violation is committed by the Defendant. The questionnaire involved in this case is part of an investigation by the Department of Consumer Affairs into the costs of the private schools operating in Puerto Rico undertaken pursuant to a broad statutory delegation. In this connection, it is not our function to invalidate the investigation merely because we may disagree with its propriety, Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (1954), in the absence of a State's abridgment of constitutional rights. New Orleans v. Dukes, 427 U.S. 297, 303-304, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). Nowhere does it appear that the investigation has not been authorized by the legislative branch, or that the information sought is "plainly incompetent or irrelevant" to the inquiry. This detracts from the asserted constitutional invalidity, on Fourth Amendment grounds, of the actions complained of. Oklahoma Press Pub. Co. v. Walling, supra; Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943); United States v. Morton Salt Co., supra; United States v. Tivian Laboratories, Inc., 589 F.2d 49 (C.A. 1, 1978).[6] The remaining question is whether the investigation sought to be invalidated here is violative of the Fourteenth Amendment's concept of personal liberty and the restrictions upon state action embodied in that provision. Whalen v. Roe, supra, 429 U.S. at 598, n. 23, 97 S.Ct. 869; Roe v. Wade, supra, 410 U.S. at 153, 93 S.Ct. 705. More precisely, the analysis should be framed in terms of the constitutional contours of governmental powers under the circumstances present in this case. In this connection, the right to privacy is not unqualified, but must be considered against the governmental interests involved in each particular situation. Roe v. Wade, supra, at 154, 93 S.Ct. 705.[7] Upon examining the questionnaire in question here, we find that the same does not present a sufficiently specific and direct detriment to the Plaintiffs as would give rise to an actionable claim under the Constitution. The informational disclosure sought by the Defendant cannot be characterized as inimical to any protected interests of secrecy. The queries concerning physical, library and laboratory facilities, number of students and teachers, services and scholarships provided are matters over which the States have traditionally possessed a legitimate interest. Pierce v. Society of Sisters, supra, 268 U.S. at 534, 45 S.Ct. 571. Furthermore, those parts of the questionnaire which relate to financial data are not "arbitrary" or "unreasonable." Whalen v. Roe, supra, 429 U.S. at 597-598, 97 S.Ct. 869. No authority has been brought to our attention, and we have not found any, which would even suggest that the fees charged to students for educational and other services are constitutionally protected from disclosure, or that the government cannot have knowledge of the salaries paid to the employees of a given institution. As to the sources of financing, the questionnaire does not seek divulgation of any list of donors or specific confidential sources of funds. Rather, the questionnaire inquires about what proportion of the school's budget is derived from enrollment fees, donations and the federal or state governments. There is nothing indicating that this type of probe transgresses the Constitution. *768 The scope of the administrative inquiry conducted here does not exceed the bounds of traditional and well recognized administrative powers of factual ascertainment.[8]United States v. Morton Salt Co., supra; Endicott Johnson Corp. v. Perkins, supra; Bergman v. Stein, 404 F.Supp. 287 (D.C.N. Y.1975); 1 Davis, Administrative Law Treatise, Ch. 3 (1958); 3 Mezines, Stein & Gruff, Administrative Law, § 19.01, p. 19-3 (1977); "Notes", 35 Notre Dame Lawyer, 77 (1959). Moreover, the power of the Legislative Assembly of the Commonwealth of Puerto Rico to so invest an agency with investigatory faculties cannot be doubted. See, Oklahoma Press Publishing Co. v. Walling, supra; Electric Bond and Share Co. v. Securities and Exch. Com'n., 303 U.S. 419, 58 S.Ct. 678, 82 L.Ed. 936 (1938), and the strictures of the Due Process Clause are not fully operative in this kind of official action. Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), rehearing denied, 364 U.S. 855, 81 S.Ct. 33, 5 L.Ed.2d 79.[9] "Privacy in the sense of freedom to withhold personal financial information from the government or the public has received little constitutional protection." O'Brien v. DiGrazia, 544 F.2d 543, 545-546 (C.A. 1, 1976), cert. den. 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223. Under the circumstances of this case, the actions complained of fall short of invading the circumscribed area of protected personal liberties. The Complaint filed in this case is hereby DISMISSED on the aforementioned grounds. The Clerk of the Court shall enter Judgment accordingly. IT IS SO ORDERED. NOTES [1] In the answer to the Complaint, the Defendant has denied that the purpose of the inquiry is to limit the fees to be charged for private education. [2] Suriñach, supra, n. 9. [3] In Pierce, "no question [was] raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils." 268 U.S. at 534, 45 S.Ct. at 573. What was decisive was the teachers' right to practice their professions and the well recognized rights of parents over their children. Id., at 534-535, 45 S.Ct. 571. [4] In Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the Supreme Court reiterated the view set forth in Roe v. Wade, supra, that the right of privacy is founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action. 429 U.S. at 598, n. 23, 97 S.Ct. 869. [5] The allegations of Paragraph 8 of the Complaint, which asserts a violation of the religious clauses of the First Amendment have already been considered by us in Suriñach v. Pesquera, supra. [6] We must also point out that the actions of the Defendant do not resemble most of the administrative or official quests which typically present colorable Fourth Amendment claims. See, e. g. Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). [7] State actions which affect in some way individual liberty or privacy will not be struck down simply because they are deemed unnecessary, in the absence of a clear transgression of constitutional guarantees. Whalen v. Roe, supra, 429 U.S. at 597, 97 S.Ct. 869. [8] The decision to investigate or not is not for us to review. Union Mechling Corp. v. United States, 185 U.S.App.D.C. 57, 566 F.2d 722 (1977). [9] As we have pointed out hereinbefore, we are not concerned with actual governmental regulation in the economic field.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519958/	587 S.W.2d 795 (1979) Gary L. MATHESON, Appellant, v. FIREMEN'S AND POLICEMEN'S CIVIL SERVICE COMMISSION OF the CITY OF DENTON, Texas, et al., Appellees. No. 18204. Court of Civil Appeals of Texas, Fort Worth. September 20, 1979. Rehearing Denied October 18, 1979. Gray, Whitten & Loveless and Michael J. Whitten, Denton, for appellant. Burt Solomons, Acting City Atty., Denton, Cantey, Hanger, Gooch, Munn & Collins and S. G. Johndroe, Jr., Fort Worth, for appellees. 796 OPINION MASSEY, Chief Justice. Gary L. Matheson, appellant and plaintiff below, was at all material times a member of the Police Department of the City of Denton. The city is one which qualifies to have its Police Department and the employees of that department covered by civil service under provisions of Tex.Rev.Civ. Stat.Ann. art. 1269m, (1963) "Firemen's and Policemen's Civil Service in cities over 10,000". Thus Matheson is entitled to the benefits of the provisions of the act. It is upon these that he has declared by his suit. Matheson considers himself aggrieved by the following: (1) about the last day of March, 1977 the former Chief of Police for the city resigned, to be succeeded by party to the suit whom we will call Chief Mills; (2) on a temporary basis former Police Captain Perry, party to the suit, assumed the duties of Assistant Chief of Police under Chief Mills, who had formerly been Assistant Chief; (3) in May of 1977 a promotional examination was given to arrive at an eligibility list for promotion to Assistant Chief on a permanent basis as is provided by Art. 1269m, §§ 9 through 14; (4) Matheson made the highest grade upon the examination, with Perry having made a lower grade; (5) accordingly, there was certification made to Chief Mills in connection with designation of applicants eligible to be, by him, appointed to the position of Assistant Chief on a permanent basis; (6) Chief Mills appointed Perry rather than Matheson to the position; (7) pursuant to provisions of § 14E of Art. 1269m Chief Mills submitted in writing his report to the Chairman of the Civil Service Commission in explanation of the appointment of Perry rather than Matheson. The provisions of the aforementioned § 14E include the following: "Head of such Department shall appoint the person having the highest grade, except where such Head of the Department shall have a valid reason for not appointing such highest name, and in such cases he shall, before such appointment, file his reasons in writing, for rejection of the higher name or names, with the Commission, which reasons shall be valid and subject to review by the Commission upon the application of such rejected person." The report of Chief Mills to the Chairman of the Commission painted a glowing picture of the qualifications and experience and dependability of Perry, but the only part thereof which tended to present a valid reason for not appointing Matheson (rather than Perry) was the following: "Based upon the diversified training and work experience Captain Jimmy F. Perry best demonstrates the type of administrative background and ability to fill the job responsibilities of Assistant Chief of Police. It is my belief that because of the foregoing experience depth of Captain Perry with the functions of the Denton Police Department that he is the best qualified applicant for the position of Assistant Chief of Police and that such advancement would be in the best interest of the Denton Police Department in terms of continuing efficiency of departmental administration and function." (Emphasis supplied.) Matheson's contention is the same at the review hearing held by the Commission upon application of Matheson, and at the trial court level to which Matheson brought his suit after his claim was rejected by the Commission. Such contention is that the report of Chief Mills in justification of Perry's appointment to be Assistant Chief of Police (rather than Matheson) showed no valid reason for not appointing him to the position in question. Art. 1269m, by its § 16a, "Purpose of law; hearings" (Supp.1978-79), provides in part: "It is hereby declared that the purpose of the Firemen and Policemen's Civil Service Law is to secure to the cities affected thereby efficient Police and Fire Departments, composed of capable personnel, free from political influence, and with permanent tenure... as public servants. The members of the Civil Service Commissions... when sitting as a board of appeals for ... aggrieved employee who has invoked any review procedures ... 797 are to render a fair and just decision, considering only the evidence presented before them in such hearing." (Emphasis supplied.) At Matheson's hearing before the Commission (pursuant to his application for review because of Chief Mills having appointed Perry as Assistant Chief of Police rather than himself), there was presented evidence of matters reflecting lesser fitness of Matheson than of Perry. These matters were not to be found in the report made by Chief Mills to the Chairman of the Commission. Had these been stated in Chief Mills report there would not exist the question of whether there was sufficiency of its content as presenting a valid reason for not appointing Matheson despite the fact that he had made a higher grade upon the examination. Material to the issues in this case is the application of the Substantial Evidence Rule. The action of the Commission in confirmation of the appointment made by Chief Mills, by the evidence before it, was not limited by the presentation made by Chief Mills' earlier report. Evidence of the lesser fitness of Matheson was properly received and considered by the Commission. We do not construe recent developments to have changed the law so that it has become improper to consider and act upon evidence in support of the Commission action which, though not presented at an earlier administrative hearing, could have been then presented. Furthermore, there was no evidence before the court below other than the transcript of the record made of the hearing before the Commission. Though Matheson sought attorney's fees he introduced no evidence even in support of that part of his case. In the trial court the burden of proof upon Matheson, to be discharged by him as condition to prevail, was that he show the decision of the Civil Service Commission not to have been supported by (available) substantial evidence despite the fact that in trial of the suit in court on an appeal from the decision of the Commission such trial shall be de novo. In the trial court all the evidence introduced is to be reviewed as though it had been presented before the Commission and such reviewing court may not substitute its judgment for that of the Commission. City of Garland v. Dittrich, 517 S.W.2d 839 (Tex.Civ.App. Eastland 1974, no writ). The order of the Commission is subject to be set aside only if from the evidence as a whole presented before the trial court (if it was or could have been presented before the Commission) is such that reasonable minds could not have reached the conclusion that the Commission must have reached in order to justify the action it took. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946); Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 82 (1939). We hold that the written report of Chief Mills to the Chairman of the Civil Service Commission in explanation of his appointment of Perry as Assistant Chief of Police, why it was in the best interest of the department that Perry be the appointee, satisfied the condition of the statute. It could not be the contemplation of law that in order to justify failure to appoint the man who has made the highest grade on the civil service examination that the written report must, as to him, present a species of condemnation of him; and especially would this be true relative to one situated as was Matheson, an employee expected to continue as such. If in this we err than by resort of the evidence presented before the Commission (and before the court below pursuant to Matheson's petition for review) there is no justification for reversal by this court. Matheson's complaint that he was deprived of his right to due process of law is without merit; and we likewise hold that the same is true of other complaints made the subject of points of error presented on his appeal. Each has been considered; each is overruled. We have taken note of the contention in opposition to the Matheson appeal that Art. 1269m, § 18, "Appeal to district court", did *798 not authorize action by a court on August 8, 1977, when Matheson instituted his suit in the district court. It was not until August 29, 1977, that the Section provided for institution of suit in instances of actions and orders of the Commission other than of suspension, dismissal or demotion. To hold in accord with the contention would require reversal and dismissal of Matheson's suit. Though the contention is probably one which is correct we have chosen to treat the case as one over which the trial court had jurisdiction and one as to which we might consider the merits involved. By either method our holding is that Matheson may not receive the relief he seeks. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519970/	254 Pa. Superior Ct. 48 (1978) 385 A.2d 518 COMMONWEALTH of Pennsylvania v. William PERRY, Appellant. Superior Court of Pennsylvania. Submitted December 6, 1976. Decided April 13, 1978. 50 Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant. Ross Weiss, First Assistant District Attorney, Elkins Park and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. SPAETH, Judge: On January 7, 1976, after a "Gagnon II" hearing, the lower court revoked appellant's parole and probation. On this appeal appellant offers two arguments in support of his claim that he is entitled to a new hearing: first, that there was testimony about violations that were not specified in the written notice given him; and second, that the record does not show that he was given a "Gagnon I" hearing or its equivalent. Appellant's first argument is insubstantial. It is clear from the lower court's opinion that it found appellant in violation of the terms of his parole and probation only on the basis of the violations alleged in the written notice, 51 namely, arrests on three counts of sale of narcotics. The court stated: At the conclusion of the hearing, the undersigned judge found, by the preponderance of the evidence, that defendant had violated his parole and probations by participating in three illicit sales of heroin. Lower Court Opinion at 3. Under these circumstances, as in Commonwealth v. Parker, 250 Pa.Super. 346, 378 A.2d 970 (1977), the fact that there was testimony about certain "technical" violations not specified in the written notice does not affect the validity of the hearing. Appellant's second argument is more substantial; it may be stated as follows. One of the minimum due process requirements of parole or probation revocation is a preliminary hearing to determine whether there is probable cause to believe that the parolee or probationer has committed a violation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). When the alleged violation is the commission of a crime, this requirement may be satisfied by a preliminary hearing at which the prosecutor has proved a prima facie case. Commonwealth v. Davis, 234 Pa.Super. 31, 43, 336 A.2d 616, 622-23 (1975). Here, however, the record contains nothing to show that such a preliminary hearing was held. In considering this argument, one should first note that appellant does not allege that he never had a preliminary hearing, but only that the record contains nothing to show that he had. It seems very likely that in fact appellant did have a preliminary hearing, for it appears that he was brought to the Gagnon II hearing from the place where he was being detained on the criminal charges. Even if we look at the record as strictly as appellant argues we must, however, appellant's argument fails. The reason the record contains nothing to show that appellant had a preliminary hearing is that appellant did not suggest to the lower court that he had not had one, nor did he argue to the lower court 52 that because he had not had a preliminary hearing, the lower court could not revoke his parole and probation. In these circumstances appellant is in no position to argue to us as he does. In several cases[] we have repeated the rule announced in Commonwealth v. Alexander, 232 Pa.Super. 57, 331 A.2d 836 (1974), that "it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so." Id., 232 Pa.Super. at 62, 331 A.2d at 839. However, we are persuaded that this rule does not apply when the issue not raised below is denial of a Gagnon I hearing. The purpose of the non-waivable requirement of written notice of alleged violations is to ensure that the parolee or probationer can sufficiently prepare his case, both against the allegations of violations, and against the argument that the violations, if proved, demonstrate that parole or probation is no longer an effective rehabilitative tool and should be revoked. In other words, the requirement bears directly on the ability to contest revocation. Accordingly, we have declined to apply the rule of waiver to a requirement that is central to the substance of the revocation proceedings. The purpose of the requirement of a Gagnon I hearing is different: it is to ensure against detention on allegations of violations that have no foundation of probable cause. If before his parole or probation is revoked a parolee or probationer has not complained of the lack of a Gagnon I hearing, he has already suffered the harm that the omission allegedly caused; since the substance of the revocation proceeding is not affected by the omission, the parolee or probationer will not be heard to complain later. This is analogous to the rule that objections to defects in a preliminary hearing (e.g., lack of counsel) or to the denial of a preliminary hearing must be raised by a motion to quash 53 the indictment; otherwise, all such procedural and "non-jurisdictional" defects are waived. Commonwealth v. Bowman, 228 Pa.Super. 342, 325 A.2d 818 (1974). The United States Court of Appeals for the Second Circuit drew this same analogy in United States v. Companion, 545 F.2d 308 (2d Cir. 1976): [A] defendant's status after conviction is the result of that conviction, not the result of his pretrial detention; the court lacks power "to remedy, retrospectively, . . . denial of a `fundamental right' which has no bearing on appellant's present incarceration"; the remedy of release from custody "is one to be sought prior to conviction." [Mayer v. Moeykens, 494 F.2d 855, 859 (2d Cir. 1974), cert. denied, 417 U.S. 926, 94 S.Ct. 2633, 41 L.Ed.2d 229 (1974).] This rationale is directly applicable [in a probation revocation case]. Appellant's present incarceration stems from a decision by [the revoking court] made after a hearing that was adequate in all respects; the denial of appellant's preliminary hearing right no longer has any relation to his incarceration. . . . To order appellant's release from custody at this time would be to grant an extreme remedy for a deprivation from which appellant is no longer suffering. This remedy should have been sought at the time that the deprivation of rights was actually occurring. Id. at 313. A similar rule exists in extradition cases: when a relator is detained beyond the period allowed by the Uniform Extradition Act, habeas corpus relief is warranted only when sought after the expiration of the prescribed period and before a governor's warrant is executed. Commonwealth ex rel. Myers v. Case, 250 Pa.Super. 242, 378 A.2d 917 (1977) (Concurring Opinion by SPAETH, J.). Affirmed. WATKINS, former President Judge, did not participate in the consideration or decision of this case. NOTES [] See, e.g., Commonwealth v. Stratton, 235 Pa.Super. 566, 344 A.2d 636 (1975); Commonwealth v. Henderson, 234 Pa.Super. 498, 340 A.2d 483 (1975).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519971/	464 F.Supp. 1273 (1979) Jeffrey POKORNY, Plaintiff, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Defendant, and The City of Schuyler, Nebraska, a Municipal Corporation, Defendant-Intervenor. Civil No. 78-0-474. United States District Court, D. Nebraska. February 2, 1979. 1274 Martin A. Cannon and Mary Cannon Veed, Omaha, Neb., for plaintiff. David A. Kubichek, Asst. U. S. Atty., Omaha, Neb., D. Nebraska, Jane B. Werholtz, Environmental Protection Agency, Region VII, Kansas City, Mo., for Costle. Larry E. Welch, Omaha, Neb., Donn K. Bieber and George E. McNally, Schuyler, Neb., for City of Schuyler. MEMORANDUM DENNEY, District Judge. The present mayor of Schuyler, Nebraska, seeks to restrain certain named defendants from proceeding with the construction of a new wastewater treatment system. Alleging that the Environmental Protection Agency's decision to refrain from preparing an environmental impact statement was unreasonable, the plaintiff desires to obtain an injunction pending a thorough evaluation of the project's impact on the surrounding area. Because of various time restraints, the Court advanced the trial upon the merits and consolidated the prayer for permanent relief with the hearing on the plaintiff's application for a preliminary injunction. After reviewing the record and considering the oral arguments of counsel, the Court concludes that equitable relief is inappropriate. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, the following findings of fact and conclusions of law support this conclusion. The city of Schuyler's existing wastewater treatment system consists of a dual cell lagoon which ultimately discharges treated effluent into Lost Creek, a minor left bank tributary of the Platte River. As required by the Federal Water Pollution Control Amendments of 1972, the city obtained a discharge permit from the Nebraska Department of Environmental Control. This permit allowed the temporary release of wastewater into Lost Creek pending the construction of an updated treatment facility in accordance with a compliance schedule. The proposed wastewater facility that is the subject of this litigation is the product of the city of Schuyler's efforts to meet an amended compliance schedule. In order to meet the deadline, the city initiated efforts to obtain federal grant construction money from the Environmental Protection Agency. In conjunction with these efforts, the city retained the engineering firm of Kirkham, Michael and Associates to prepare a facility plan as required by EPA regulations. 40 C.F.R. § 35.920 (1977). By April of 1976, Kirkham, Michael had completed a facility plan which included, inter alia, a description of current economic, demographic, land use and environmental conditions in the Schuyler area, a description of the existing wastewater treatment facility, a forecast of future land use and population trends in the area, assessments of the cost effectiveness and the environmental impacts of several possible alternative means of achieving compliance with discharge limits, and an 1275 environmental analysis of the particular treatment alternative selected. On the basis of a consideration of all of these factors, the facility plan concluded that a land application system best served the city's needs. The recommended system involves the construction of two new lagoons for the treatment and storage of wastewater. During the growing season, treated wastewater would be applied to an alfalfa field by a center pivot irrigation system. This arrangement would serve two environmentally laudatory purposes: the nutrients within the wastewater would be recycled, and effluent would no longer be discharged into Lost Creek. Following the preparation of the facility plan and the selection of the land application alternative, the Environmental Protection Agency was notified. Upon receipt of the plan, the EPA conducted an environmental review in order to determine whether an impact statement was required prior to the disbursement of grant money for the project. That review found no significant environmental impacts associated with the proposed land application system. Accordingly, the Environmental Protection Agency issued a negative declaration. Accompanying that negative declaration was an environmental impact appraisal which briefly described the proposed project, feasible alternatives, the environmental impacts of the proposed action, and the reasons for concluding that there would be no significant environmental impacts. Subsequently, as a result of the selection of an alternative site on the south side of Lost Creek, the EPA issued an amendment to the original negative declaration. In this declaration, dated December 22, 1976, the Environmental Protection Agency concluded that the construction of the proposed facility on the new site offered no greater environmental impacts than those associated with the original location on the north side of Lost Creek. Accordingly, the EPA reaffirmed its original decision to refrain from preparing an environmental impact statement. Prior to addressing the plaintiff's allegations of defects in the decision of the EPA, the Court must confront a number of threshold questions. No meaningful evaluation of the evidence can take place in the absence of clearly established standards of review and firm legal guidelines. Principles of Judicial Review Under the National Environmental Policy Act of 1969 and the regulations promulgated thereunder, the decision-making agency is entrusted with the task of making the threshold determination of the need for an environmental impact statement. 40 C.F.R. § 6.200 et seq. (1977); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1319 (8th Cir. 1974); Hanly v. Mitchell, 460 F.2d 640, 644 (2d Cir. 1972), cert. denied 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). The standard of review of a threshold decision to issue a negative declaration rather than prepare an impact statement varies from jurisdiction to jurisdiction. See Peltz & Weinman, NEPA Threshold Determinations: A Framework of Analysis, 31 Miami L.Rev. 71, 81-87 (1976); Note, Threshold Determinations under Section 102(2)(C) of NEPA: The Case for "Reasonableness" as a Standard for Judicial Review, 16 Wm. & Mary L.Rev. 107, 117-26 (1974). Within the Eighth Circuit, the standard for judicial review is one of "reasonableness." Minnesota Public Interest Research Group v. Butz, 498 F.2d at 1320; Monarch Chemical Works, Inc. v. Exon, 452 F.Supp. 493, 500 (D.Neb.1978); Sierra Club v. Cavanaugh, 447 F.Supp. 427, 431 (D.S.D.1978); Patterson v. Exon, 415 F.Supp. 1276, 1281 (D.Neb.1976). This standard of review is more rigorous than the narrower tests adopted by other federal courts. Illustrative are several appellate court decisions where trial court reviews of negative declarations were overturned because of the application of an "arbitrary and capricious" standard rather than one of reasonableness. See, e. g., Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1248-49 (10th Cir. 1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 465 (5th Cir. 1973). 1276 The adoption of a certain standard of review does not answer the problem of allocation of the burden of proof in negative declaration controversies. Courts that have faced the problem place the initial burden of demonstrating the existence of "substantial environmental issues" on the plaintiff. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir. 1973); Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457, 490 (N.D.Ill.1978). The plaintiff's obligation is satisfied if a deficiency in the administrative record can be established. Once this has occurred, the burden will shift, as a general rule, to the federal agency which possesses the labor, public resources and expertise to make the proper environmental assessment and to support it by a preponderance of the evidence. Simmans v. Grant, 370 F.Supp. 5, 12 (S.D.Tex.1974). Closely coupled with the burden of proof question is the propriety of considering evidence outside of a deficient administrative record. Judicial adoption of a searching standard of review does not mean that a federal court's equitable power should always be invoked when an agency fails to adequately address all of the environmental impacts of a major federal action in a negative declaration or an environmental impact appraisal. Upon a prima facie demonstration of an incomplete development of a written record by a federal agency, extrinsic evidence may be considered in a judicial evaluation of the reasonableness of an administrative decision to issue a negative declaration. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d at 425; Save Our Ten Acres v. Kreger, 472 F.2d at 467; Mid-Shiawassee County Concerned Citizens v. Train, 408 F.Supp. 650, 654 (E.D.Mich.1976), aff'd 559 F.2d 1220 (6th Cir. 1977); Jones v. HUD, 390 F.Supp. 579, 591 (E.D.La.1974). Before a federal court can decide upon the propriety of considering extrinsic evidence, a definition of the scope of an administrative record must be framed. The concept appears to be a narrow one. The Environmental Protection Agency requires that only a negative declaration and an environmental impact appraisal be prepared and circulated if a project is found to have no significant impact. The Court concludes that, at the very least, the EPA is required to establish a reviewable administrative record in accordance with the following regulations set forth at 40 C.F.R. § 6.212 (1977): (a) General. When an environmental review indicates there will be no significant impact or significant adverse impacts have been eliminated by making changes in the project, the responsible official shall prepare a negative declaration to allow public review of this decision . .. . . . . . . (b) Specific actions. The responsible official shall take the following specific actions on those projects for which both a negative declaration and an impact appraisal will be prepared: (1) Negative declaration. (i) Prepare a negative declaration immediately after the environmental review. This document shall briefly summarize the purpose of the project, its location, the nature and extent of the land use changes related to the project, and the major primary and secondary impacts of the project. . . . . . (2) Environmental impact appraisal. (i) Prepare an environmental impact appraisal concurrently with the negative declaration. This document shall briefly describe the proposed action and feasible alternatives, environmental impacts of the proposed action, unavoidable adverse impacts of the proposed action, the relationship between short term uses of man's environment and the maintenance and enhancement of long term productivity, steps to minimize harm to the environment, irreversible and irretrievable commitments of resources to implement the action, comments and consultations on the project, and reasons for concluding there will be no significant impacts. If a plaintiff demonstrates the existence of "substantial environmental issues" because of a deficiency in the negative declaration 1277 or impact appraisal, a court may consider evidence outside of that narrow administrative record in its review of the reasonableness of the decision to proceed with the project without filing a formal impact statement. Although an administrative record must be prepared by the responsible official whether a project is adjudged to have either significant or insignificant environmental impacts, a comparison of the relative requirements is helpful in an understanding of the present case. The preparation of an EIS is often a long and complex task that demands a detailed evaluation of environmentally significant impacts in accordance with a statutory outline. In contrast, the Code of Federal Regulations only requires brief descriptions of the project and its environmental consequences when a negative declaration is issued. The policy behind requiring a succinct evaluation of a project's environmental impacts rather than a detailed statement is related to the degree of significance. Environmental protection would not be served by requiring an EIS when a project is insignificant within the meaning of NEPA. The time that the preparation of a full-blown impact statement demands is out of proportion to the environmental risks that exist. If a project's impacts are insignificant, the efforts of the government can focus upon the completion of proposed actions rather than the preparation of documents that serve no useful purpose. A final principle of review in negative declaration cases should be stressed. A reviewing court should confine its inquiry to whether a federal agency has reasonably concluded that a project has no significant adverse environmental impacts, and not whether such adverse effects actually exist. City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975); Friends of Yosemite v. Frizzell, 420 F.Supp. 390, 395 (N.D.Cal.1976). If neither EPA nor the engineering firm that prepared the facility plans considered a substantial environmental issue prior to the time of the issuance of the negative declaration, the Court is precluded from considering evidence on that issue in an evaluation of the reasonableness of the agency's decision. Of course, such evidence could be considered in a determination of whether an environmental plaintiff has demonstrated a deficiency in an administrative record of sufficient significance to warrant the shifting of the burden of proof. Despite the existence of temporal limitations on the consideration of evidence on the issue of a decision's reasonableness, no such restrictions impinge upon the character of admissible evidence. Physical exhibits, oral testimony and other substantive evidence can be referred to in the judicial review of the propriety of issuing a negative declaration. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d at 425; Save Our Ten Acres v. Kreger, 472 F.2d at 467; Jones v. HUD, 390 F.Supp. at 591. If such extrinsic evidence demonstrates that the agency did in fact consider the environmental concerns now brought forth by the plaintiff, the administrative decision is not unreasonable per se solely because of the lack of formal discussion. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d at 426; First National Bank of Homestead v. Watson, 363 F.Supp. 466, 474 (D.D.C.1973). Reasonableness of Negative Declaration The decision of the EPA to refrain from filing an EIS on Schuyler's new wastewater treatment system is allegedly deficient in several different respects. The plaintiff's initial complaint relates to the EPA's failure to consider the possibility of locating the treatment plant out of the 100 year floodplain of the Platte River. Alleging that the original site north of Lost Creek and the presently proposed location across the stream to the south are both within the parameters of the Platte's one percent flood line, the plaintiff seeks injunctive relief pending an evaluation of potential locations outside of the path of future floods. The original facility plan considered the possibility of a regional solution to the pollution problem, the implications of taking no action, and the feasibility of four different 1278 approaches to the effluent treatment problem. Each of the four alternatives would require a different location of the lagoons or a different layout concept. The Court believes that the failure of the facility plan to consider plant locations outside of the Platte River 100 year floodplain does not warrant an exercise of equitable relief. The decision to locate the two new effluent cells adjacent to Lost Creek and within the Platte River floodplain was made after a good faith evaluation of the feasible alternatives available. The plans for the new treatment facility reveal that the presently existing wastewater treatment cells are to be used in conjunction with the two new lagoons. All four cells are integrally related in the new land application system. The desirability of keeping all of these cells in the same general location is obvious from a financial viewpoint. Confining odor problems to as small an area as possible also constitutes sound planning. Furthermore, the plaintiff has failed to demonstrate the existence of any significant adverse impacts that might result from the construction of these cells in the floodplain of the Platte River. Although the height of the dikes surrounding the proposed lagoons were originally designed to withstand a lower projected 100 year flood level than the 1343 foot estimate presently accepted as accurate by the Corps of Engineers, the evidence adduced at trial clearly demonstrates that the engineers anticipated the problem and took steps to mitigate the potentially significant environmental impacts. The present plans call for a dike that rises a full fifty-four inches above the maximum flood stage of the Platte River. The Court further notes that consultation with the Corps of Engineers, which is required before construction in a flood plain can commence, did not result in the raising of any objections to the sufficiency of the protective measures designed into the project by Kirkham, Michael and Associates. Nor is any significant adverse impact attributable to the location of the two wastewater cells on the south side of Lost Creek rather than on the slightly higher ground contemplated in the original facility plan. As previously pointed out, the proposed dikes are high enough to withstand Platte River flood waters. The change in the location of the cells, which was attributable to land acquisition problems and a desire to streamline the project design, is taken into account in the system design. The engineers recognized the potential problem, and took steps to minimize the potential harm. The tendency of the Platte River to "pirate" the channel of Lost Creek during floods of lesser magnitude than those occurring once a century has been demonstrated by the evidence. However, the Court can discern no environmental impacts in the "pirating" situation of greater significance than those associated with the Platte's 100 year floods. Overtopping of the protective dikes is not a problem. Moreover, a levee has recently been constructed upon the north bank of the Platte River to prevent the "pirating" of the Lost Creek channel in times of high water. The possibility that the Platte might change its course and divert part or all of its waters into a tributary that is lower in elevation in this area of the watershed is lessened by the construction of the north bank levee. While the levee, which was designed to withstand 10 year floods with freeboard to spare, was built to protect the city of Schuyler rather than the proposed lagoons, the fact remains that waters which might have come down Lost Creek in a flood of lesser proportions than the 100 year prediction for the Platte River crest are now subject to diversion. The failure of EPA or the engineers who drew up the facility plan to consider the environmental effects of a flood on Lost Creek itself is also raised by the plaintiff. The lack of study is acknowledged by the EPA. No evaluation of the flood hazard from Lost Creek appears in the administrative record. The reason for the omission initially appears to be attributable to the lack of a significant environmental threat from such a source. No records adduced at trial suggest that Lost Creek has ever flooded independently of the Platte. 1279 Some evidence presented by the defendants suggests that the threat of harm from a Lost Creek flood is not entirely remote and speculative. However, this evidence centers around recent Corps of Engineers computations of the 100 year crest of a Lost Creek flood. These figures were unavailable and were not considered by the EPA prior to the issuance of the negative declaration, and are not to be considered in the evaluation of the reasonableness of the agency's decision. Despite this stricture upon a federal court's ability to evaluate evidence, it seems rational to refer to this type of proof in a determination of the existence of "substantial environmental issues." In this manner, a reviewing court can determine whether the failure of an administrative agency to consider an issue is due to an oversight of a significant environmental impact or if the matter was too inconsequential to warrant even the brief treatment required in an administrative record supportive of an agency's decision to refrain from filing an impact statement. According to the uncontroverted backwater computation of the Corps of Engineers, the channel of Lost Creek has a capacity of 3000 cubic feet per second (cfs) in the area of the proposed lagoons. A Corps study presently under way in Columbus, Nebraska, estimates that the 100 year flood level of Lost Creek is 1700 to 2300 cfs in that area. Columbus is approximately sixteen miles upstream from the city of Schuyler. Proportionately, given the fact that the source of Lost Creek is ten miles above Columbus, it is entirely possible that the banks would overflow in the vicinity of the lagoons if extraordinary meteorological conditions developed. However, there is no suggestion that such a flood on Lost Creek would overtop the dikes surrounding the lagoons. The menace of a high water level is not nearly as great as that associated with a 100 year flood on the Platte River. Even more compelling is the fact that the Loup River Power Canal, located near Columbus, is capable of diverting waters from Lost Creek into the Platte River if conditions warrant such an action. This "safety valve" feature convinces the Court that the impact of a flood on Lost Creek alone would be of no environmental significance. While the EPA could have addressed the issue of Lost Creek flooding in its environmental impact appraisal, its failure to do so is, at the most, a technical failure to comply with the applicable regulations. The Court will not invoke the extraordinary remedy of equitable relief under such circumstances. Another alleged deficiency raised by the plaintiff is the failure of the EPA to consider the environmental ramifications of locating the effluent lagoons so that the channel of Lost Creek is partially obstructed. Pokorny asserts that flooding will be more prevalent in times of high waters because this obstacle is partially within the "floodplain" of Lost Creek. The Court holds that no significant environmental impacts arise from the alleged enhancement of the risk of flooding. The calculations of the Corps of Engineers, based upon a cross-sectional of Lost Creek, demonstrate that the flow of 3,000 cfs is virtually the same whether the lagoons are there or not. While such calculations were not made at the time of the EPA's decision to proceed with the project without filing an EIS, the Court again holds that post-decisional evidence can be referred to for the limited purpose of deciding whether "substantial environmental issues" have been raised. The Court believes that the alleged "deficiencies" in the administrative record are not due to agency oversight, but instead to the insignificance of the asserted impact. All documents prepared by humans are deficient in one respect or another. This does not mean that all major federal projects should be enjoined if a resourceful and imaginative plaintiff can pinpoint a failure to address some minor environmental issue in a document that is, under the regulations, supposed to be brief in its analysis. A further issue raised by the plaintiff is the capacity of the dikes to resist the erosive effects of moving flood waters. In particular, the plaintiff's expert witness questions the failure of the EPA to study the adequacy of "riprap" as a means of stemming the erosion of the dikes. 1280 The Court holds that this concern is an engineering problem rather than an environmental question. The failure of the EPA to address such questions as the height, thickness or composition of "riprap" in the administrative record is not significant in the context of this lawsuit, especially when the regulations require that a negative declaration and an environmental impact appraisal must be issued before construction plan grants can be released. Detailed architectural plans are not typically in existence at the time of the agency's threshold environmental decision. A decision to "riprap" the side of a dike to avoid potential environmental impacts may obviate the need for the preparation of an EIS. The specific details with regard to the exact nature of the proposed protection would not be worked out until after the general agency conclusions about significant impacts had been made. A comparison of the testimony of the respective experts on this issue demonstrates the propriety of denying injunctive relief. The plaintiff's engineer expressed reservations about the fact that the "riprap" did not extend low enough on the dike despite his admission that he had no experience in flood erosion prevention. Testimony from the EPA's expert, a hydrologic engineer, shows that a shield of "riprap" three feet high and twelve to eighteen inches thick, was sufficient to withstand a calculated maximum flow of 9 feet per second in the middle of a Lost Creek channel that could handle 3,000 cfs of water before overflowing. The Court agrees with the conclusion of the EPA's expert that the lagoon design adequately takes the Lost Creek flow into account. A further concern voiced by the plaintiff in this suit is the adequacy of the bentonite seal that will cover the bottom and interior sides of the new cells. The plaintiff's expert raises the possibility of the creation of a hydrostatic head, destructive of the sealant's qualities, in the event of a prolonged flood where river waters maintain a level higher than the lagoon's contents. The resulting escape of the wastewater into the surrounding floodwaters is, in the eyes of the plaintiff, a significant degradation of the environment. The Court again concludes that the problem is one of engineering rather than of the environment. The plaintiff's expert conceded that he had no opinion as to the probability of a hydrostatic boil in the bentonite seal. More importantly, there has been no demonstration of irreparable injury that would justify the issuance of an injunction, even if the wastewater were to escape during a time of very high floodwaters. The uncontroverted testimony of the engineer who prepared the facility plan demonstrates that the surrounding flood would be more polluted than the effluent within the lagoons. Because the escape of wastewater into the high waters outside of the cells would not cause a degradation of the environment, the impact would be insignificant and the preparation of an EIS would be unjustified. Pokorny further challenges the validity of the EPA's failure to address the environmental significance of running pipes full of effluent underneath Lost Creek. This allegation fails to raise a substantial environmental issue. The pipes are to be buried five feet below the bottom of Lost Creek. The wastewater lines are three feet lower than two natural gas pipelines which presently are beneath the bed of the stream in the same area. An insignificant narrowing of the Lost Creek channel due to the location of these two new lagoons could not cause a sufficient scouring of the creek bottom to create a legitimate environmental concern. The design of the system clearly protects the effluent pipes from the remote and speculative possibility of line breakage through the deepening of the bed of Lost Creek. The plaintiff's final environmental objection to the project involves a fear of an overdraw of effluent through the center pivot sprayer during the dry months of late summer, with a resulting application of insufficiently treated sewage on the alfalfa crop. This fear is unfounded. The EPA has kept informed on application rate data 1281 throughout the life of this project. No evidence suggests that the center pivot system cannot be shut off if the sprayed liquid has received insufficient treatment. After a searching evaluation of the plaintiff's environmental objections to the actions of the Environmental Protection Agency, the Court concludes that the decision to refrain from preparing an impact statement was reasonable. An order in accordance with this memorandum opinion shall be filed contemporaneously herewith.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519972/	587 S.W.2d 805 (1979) FARMERS CANAL COMPANY, Appellant, v. Otto J. POTTHAST et al., Appellees. No. 1387. Court of Civil Appeals of Texas, Corpus Christi. September 21, 1979. 806 Thomas H. Lee, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellant. Dean W. Turner, Bath & Turner, Henderson, for appellees. OPINION BISSETT, Justice. Involved in this appeal from a summary judgment is the construction of a royalty grant in a deed. The question to be determined is whether the deed conveyed to the grantee, his heirs and assigns, a royalty of ¼th of 1/8th of the minerals produced from the subject land, or a royalty of ¼th of the fractional royalty reserved by the grantors, their heirs and assigns, in future mineral leases. Otto J. Potthast and wife, Virginia Potthast, Mabel Potthast, Cynthia Potthast, Phyllis P. Alford, and Dorothy P. Massey, plaintiffs, filed this suit against Farmers Canal Company, defendant, on October 29, 1976. Plaintiffs sought a declaratory judgment to the effect that they are the owners, subject to an existing oil, gas and mineral lease, of all oil, gas and other minerals, save and except a ¼th of 1/8th (or a 1/32nd), royalty interest, in and to all of the oil, gas and other minerals produced, saved and sold from a certain 952.10 acre tract of land, in Matagorda County, Texas; plaintiffs further asked that the cloud cast on their title to their "royalty interest" be removed, and for damages for their royalty then being held in suspense. Defendant answered with a general denial and a cross action, wherein it contended (in the cross action) that it is the owner of ¼th of the royalties 807 reserved in the existing oil, gas and mineral lease affecting the 952.10 acres, and ¼th of the royalties which may be reserved by plaintiffs in future mineral leases. Thereafter, both parties moved for summary judgment. Plaintiffs' motion was granted, and defendant's motion was denied. The judgment decreed: "IT IS NOW, THEREFORE, ORDERED, ADJUDGED, DECREED, DETERMINED AND DECLARED that the Plaintiffs, individually or through their predecessors in title, reserved all of the oil, gas and other minerals except 1/32nd nonparticipating royalty interest by that deed from Dr. A. H. Potthast, et al, to J. B. Bures, dated January 15, 1945, recorded in Volume 159, Page 4-6, Deed Records of Matagorda County, Texas, conveying the above described land; that the cloud of title on Plaintiffs' said minerals and royalties cast by Defendant herein be, and the same is hereby removed." The dispute between the parties, which precipitated the filing of this suit, arose out of a difference in the parties' construction of two clauses contained in a deed, dated January 15, 1945, executed by Dr. A. H. Potthast, E. B. Potthast, and Dr. O. J. Potthast, joined by their respective wives, as grantors, to J. B. Bures, as grantee, whereby the surface of the said 952.10 acres and a royalty interest was conveyed to Bures. The granting clause in the aforesaid deed reads, as follows: "Have GRANTED, SOLD and CONVEYED, and by these presents do GRANT, SELL AND CONVEY unto the said J. B. Bures, of Matagorda County, Texas, the surface estate, together with all and singular the rights and appurtenances thereto in anywise belonging, and an undivided one-fourth (¼th) interest in and to all of the sulphur royalty, oil royalty, gas royalty, and royalty in all other minerals in that certain tract, parcel and body of land, lying and being situated in Matagorda County, State of Texas, described as follows:" Following the land description, there is a clause which clearly reserves unto grantors the executive rights with respect to future leasing of the land for mineral exploration and development, and made the royalty conveyed by the deed a "nonparticipating" royalty. That clause, in relevant part, further provides: "It is distinctly understood and herein stipulated and agreed ... that Grantee shall only receive one-fourth (¼ th) of the money royalty on sulphur on the basis of One ($1.00) Dollar per long ton and one-fourth (¼th) of the one-eighth (1/8th) royalty on oil, gas and all other minerals provided for in such lease or leases; and in the event Grantors, their heirs, or assigns, in the status of the fee owners of the minerals shall operate and develop the minerals therein, Grantee, his heirs and assigns, shall own and be entitled to receive as a free royalty an undivided one-thirty-second (1/32nd) of all of the sulphur, oil, gas and other minerals produced, saved and sold off the premises; all future ad valorem, production and other taxes assessable or chargeable against the property and rights herein conveyed are assumed by Grantee." Dr. A. H. Potthast and E. B. Potthast, two of the grantors in the deed to Bures, died before this suit was filed. Plaintiffs, hereinbefore named, are the sole owners of the mineral interests reserved by the grantors in the deed to Bures. Thereafter, on December 1, 1945, J. B. Bures conveyed to Farmers Canal Company, defendant, the land in question. The deed contained the following language which followed the land description: "This deed is subject to Mineral Reservations set out in deed from Dr. A. H. Potthast et al to J. B. Bures, dated January 15th, 1945, and recorded in Volume 159, on pages 4 to 6, of the Deed Records of Matagorda County, Texas." On May 12, 1972, plaintiffs executed an oil, gas and mineral lease covering said land. The lease reserved a 1/6th royalty on oil and gas, 50¢ per long ton on sulphur and 1/10th on all other minerals. Production of oil and gas in commercial quantities was established under said lease. The lease was 808 a valid and subsisting lease at all times pertinent to this appeal. There is no evidence that the land conveyed to Bures in 1945 was leased for mineral development until May 12, 1972. Defendant interprets the deed as conveying to Bures, his heirs and assigns, ¼th of whatever royalty is reserved in subsequent leases covering the 952.10 acre tract. Plaintiffs interpret the deed as conveying ¼th of 1/8th royalty to Bures, his heirs and assigns. It is a well settled rule that in construing a deed, it is the duty of a court to seek the intention of the parties to that deed. Terrell v. Graham, 576 S.W.2d 610 (Tex.Sup.1979). The intention of the parties, as it is expressed in the deed, is to be ascertained from a consideration of all the language which appears in the deed, and by harmonizing, if possible, those provisions which appear to be in conflict. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341 (1957); Cockrell v. Texas Gulf Sulphur Company, 157 Tex. 10, 299 S.W.2d 672 (1956). It is also well settled that should there be any doubt in ascertaining the intention of the parties as their intention is expressed in the deed in its entirety, that doubt, after considering the deed from its four corners, should be resolved against the grantors, whose language it is, and the deed must be construed most favorably to the grantee, as conveying to him the largest estate permissible within the language of the deed. Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904 (1957); Allen v. Creighton, 131 S.W.2d 47 (Tex.Civ.App. Beaumont 1939, writ ref'd). Even though different parts of a deed may appear to be contradictory and inconsistent with each other, a court in construing the words in a deed so as to give effect to all parts thereof, will not strike down any part of the deed, unless there is an irreconcilable conflict where one part of the instrument effectively destroys another part thereof. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953). Another applicable rule in the construction of a deed is that one provision in a deed should not be taken alone and a presumption raised upon it at variance with the other provisions thereof. Clement v. Scott, 60 S.W.2d 258 (Tex.Civ.App.Texarkana 1933, writ ref'd). It is also a well recognized rule of construction that where there is a "necessary repugnance" of clauses in a conveyance, the granting clause prevails over the other provisions of the deed. Waters v. Ellis, 158 Tex. 342, 312 S.W.2d 231 (1958); Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1954). In Lott v. Lott, 370 S.W.2d 463 (Tex.Sup. 1963), the issue to be resolved was whether language in the habendum clause of an instrument, denominated "TENANT'S DISCLAIMER," limited or destroyed a general grant which appeared in a clause preceding the description of the land affected. The court held that: 1) the instrument was a quitclaim deed, 2) it was effective to convey to the grantee "any interest or title" in the land owned by grantor on the date of its execution, and 3) the operative effect of the "disclaim and release" provisions (the granting clause) of the deed was not destroyed by the language contained in the habendum clause. The Court, at page 465, said: "... If this recitation were held to limit the interest conveyed to `tenant right[s],' the grant in the premises clause would be in major part nullified. That result would run counter to sound rules of construction that the granting clause prevails over other provisions of a deed and that a deed will be construed to confer upon the grantee the greatest estate that the terms of the instrument will permit. Waters v. Ellis, 158 Tex. 342, 312 S.W.2d 231, 234." This is not a suit for rescission or reformation of the deed in question. None of the parties contend that the provisions of the deed are ambiguous. In the instant case, should the granting clause in the deed to Bures be considered 809 alone there would be no doubt but that the royalty interest conveyed was ¼th of the royalty reserved in future leases, since the granting clause in the deed recites in unequivocal terms that the interest conveyed is "an undivided one-fourth (¼th) interest in and to all of the ... royalty" in the 952.10 acres. But, following the granting clause and the description of the property appears language which provides, in effect, that if the land is leased by the grantors, their heirs and assigns, and production of minerals is obtained by their mineral lessee, that "Grantee shall only receive one-fourth (¼th) of the money royalty on sulphur on the basis of One ($1.00) Dollar per long ton and one-fourth (¼th) of the one-eighth (1/8th) royalty on oil, gas and all other minerals provided for in such lease or leases." The granting clause in the deed to Bures does not call for a one-fourth (¼th) of the one-eighth (1/8th) royalty, or a 1/32 royalty, as plaintiffs contend. Instead, it calls for a royalty of ¼th of all royalty. Such royalty would amount to a 1/32nd royalty only if the basic royalty in the lease under which minerals are produced provides for a 1/8th royalty. Continental Oil Co. v. Doornbos, 402 S.W.2d 879, 881 (Tex.Sup.1966). The 1972 mineral lease does not reserve unto lessors (plaintiffs) a 1/8th royalty. It reserves a 1/6 th royalty. We do not agree, as asserted by plaintiffs, that the subsequent recitals in the deed to Bures change or limit the quantum of the royalty stated in the granting clause to a fractional royalty equal to ¼th of 1/8th royalty, or a 1/32nd royalty, regardless of the quantum of royalty reserved under the terms of a mineral lease. Nor do we agree that the parties to the deed intended for the language in the clause following the description of the land to have such a restrictive interpretation. Such an interpretation or construction would ignore the express terms of the granting clause. The subsequent language in the deed reciting, in substance, that the grantee shall receive only ¼ th of the 1/8th royalty "provided for in such lease or leases" must yield to the express language which appears in the granting clause of the deed. Allen v. Creighton, 131 S.W.2d 47 (Tex.Civ.App.Beaumont 1939, writ ref'd). Applying the rules of construction herein-above stated to the record presented in this appeal, we hold that the trial court erred in granting plaintiffs' motion for summary judgment and in rendering judgment for them. We further hold that the trial court erred in denying defendant's motion for summary judgment and in refusing to render a judgment decreeing that defendant owned an undivided ¼th interest of all of the royalty reserved by the grantors in the Bures deed, their heirs and assigns, in any mineral lease or leases executed by them covering the land in question. Defendant is entitled to a royalty of ¼th of 1/6th, or 1/24th, of all minerals produced and sold under the 1972 mineral lease. Accordingly, the judgment of the trial court is reversed and judgment is here rendered that the deed from Dr. A. H. Potthast, et al, as grantors, to J. B. Bures, as grantee, dated January 15, 1945, with respect to royalty, conveyed to the grantee, his heirs and assigns, an undivided ¼th of all royalty reserved by the grantors, their heirs and assigns, in all mineral leases thereafter executed by them covering all or any part of the subject land. REVERSED and RENDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519974/	587 S.W.2d 778 (1979) Rafael CHAPA, Appellant, v. Jose HERNANDEZ, Appellee. No. 1439. Court of Civil Appeals of Texas, Corpus Christi. September 13, 1979. 779 Oscar Palacios, Pharr, for appellant. Garcia & Garcia, Edinburg, for appellee. OPINION YOUNG, Justice. This is an appeal from a guardianship case between a minor's paternal and maternal grandfathers following an auto accident which killed both of the minor's parents. The trial court rendered judgment favorable to the maternal grandfather. We affirm. The minor child, Jose Luis Chapa, Jr. was born to Jose Luis Chapa, Sr. and Juana Hernandez Chapa on October 13, 1977. The fatal car accident occurred January 15, 1978. On January 17, 1978, appellant Rafael Chapa, the minor's paternal grandfather, filed an application for guardianship of the minor's person and estate in the County Court at Law of Hidalgo County. On January 30, 1978, the court appointed an attorney ad litem for the minor. Thereafter, on 780 February 2, 1978, the minor's maternal grandfather, appellee herein, Jose Hernandez, filed a contest against Rafael Chapa's application and claimed that he should be appointed guardian of the minor's person and estate. The court consolidated the applications on February 7, 1978, and authorized the attorney ad litem to collect the minor's estate. Hernandez, filed an amended application for appointment on June 21, 1978. The case was tried before a jury beginning on June 29, 1978. After all parties had closed but before the cause had been submitted to the jury, Chapa moved for an instructed verdict on the ground that under Tex.Prob.Code Ann. §§ 114, 110 (Supp. 1978)[1], Hernandez had failed to prove that he was not indebted to the estate of the child. See Section 110(e). The court overruled this motion. Chapa then objected to the submission of special issues for the same reasons set forth in his motion for instructed verdict. These objections were overruled. The case was then submitted to the jury on four special issues. In response, the jury refused to find from a preponderance of the evidence that the minor's best interests would be served by appointing Chapa guardian of the minor's person (1) or estate (3); but the jury did find from a preponderance of the evidence that the minor's best interests would be served by appointing Hernandez guardian of the minor's person (2) and estate (4). Hernandez moved for judgment on the verdict and Chapa moved for judgment notwithstanding the verdict alleging in general terms that Hernandez had wholly failed to meet his burden of proof with respect to Sections 114 and 110 of the Probate Code. Chapa's motion for judgment notwithstanding the verdict was overruled and judgment was entered for Hernandez. Chapa then filed a motion for new trial again alleging broadly, as in the motion for judgment notwithstanding the verdict, that Hernandez failed to prove his case under Sections 114 and 110 and he also alleged error by the trial court in the admission of certain evidence over Chapa's objections. Appellant's points 1 through 4 contend the trial court erred in overruling his motion for instructed verdict, his objections to special issues, and his motion for judgment notwithstanding the verdict under Sections 114 and 110. We disagree. Section 114 provides in pertinent parts as follows: "Section 114. Facts Which Must Be Proved Before appointing a guardian, the court must find: (a) That the person for whom a guardian is to be appointed is ... a minor.... (b) That the court has venue of the case. (c) That the person to be appointed guardian is not disqualified to act as such and is entitled to be appointed; or, in case no person who is entitled to appointment applies for it, that the person appointed is a proper person to act as such guardian. (d) That the rights of persons or property will be protected by the appointment of a guardian." Section 110 provides: Section 110. Persons Disqualified to Serve as Guardians "The following persons shall not be appointed guardians: (a) Minors. (b) Persons whose conduct is notoriously bad. (c) Incompetents. (d) Those who are themselves parties, or whose father or mother is a party to a lawsuit on the result of which the welfare of the person for whom, or for whose estate, a guardian is to be appointed, may depend. (e) Those who are indebted to the person for whom or for whose estate a guardian is to be appointed, unless they pay the debt prior to the appointment, or who are asserting any claim to any property, real or personal, adverse to the person for 781 whom, or for whose estate, the appointment is sought. (f) [Deleted.] (g) Those who by reason of inexperience or lack of education, or for other good reason, are shown to be incapable of properly and prudently managing and controlling the ward or his estate." In these four points appellant Chapa presupposes that appellee Hernandez, had the burden of proof to negate any disqualification (as set out in Section 110) on his part. But the burden to prove disqualification of a guardian, here Hernandez, is upon the challenger, here Chapa. Ramirez v. Garcia de Bretado, 547 S.W.2d 717, 718 (Tex.Civ. App.El Paso 1977, no writ). On Hernandez' disqualification, if any there was, Chapa neither offered proof nor requested the submission of any special issue, both of which he was required to do to have us review the disqualification matter. Rules 277 and 279, T.R.C.P.; see Guardianship of Henson, 551 S.W.2d 136 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.). We will further demonstrate why appellant's points 1 through 4 are without merit. Section 109 provides as follows: "Persons Qualified to Serve as Guardians * * * * * (b) Guardians of Orphans. These rules shall govern as to orphans who are minors: * * * * * * (2) If there be more than one ascendant in the same degree in the direct line, they are equally entitled. The guardianship shall be given to one or the other, according to circumstances, only the best interest of the orphan being considered. * " Here, in that Chapa and Hernandez were both grandfathers (ascendants of the same degree) of the minor child who was an orphan because both of his parents were deceased, each was presumed to be qualified to serve as the minor's guardian. Section 109(b)(2), supra. So the only issue remaining to be resolved is which grandfather should be appointed guardian when only the best interest of the minor is considered. That issue was submitted to the jury and the jury answered favorably to Hernandez. Appellant's points 1 through 4 are overruled. Appellant's point 5 contends that there was insufficient evidence to support the jury's findings that the best interests of the minor's person and estate would be served by appointing Hernandez as guardian. We disagree. The evidence is replete with the redeeming qualities of Mr. Hernandez. His children and wife testified that he was a good father and able provider, that he loved his family, and that he had given them all he could. It was shown that he had raised several children of his own, that he had one child that was only four years older than the minor and that he was relatively young himself. There was some evidence that Hernandez liked to drink beer, but it was conflicting as to how often and how much. We think the evidence was sufficient to support the jury's decision. Appellant's point 5 is overruled. Appellant's 6th point contends the trial court erred in allowing appellee to impeach his own witness. Hernandez called Juan Chapa, one of the appellant's sons, to the stand and asked him questions solely dealing with his father's fitness to serve as the minor's guardian. On cross-examination the appellant asked Juan about Hernandez' drinking habits. Hernandez then cross-examined Juan, over objection, concerning this matter. We find no error in Hernandez cross-examining Juan concerning his testimony about Hernandez' drinking habits in that he became appellant Chapa's witness for purposes of the new matter elicited. See Fenner v. American Surety Co. of New York, 156 S.W.2d 279 (Tex.Civ.App.Waco 1941, writ ref'd w. o. m.); see also McCormick and Ray, Texas Law of Evidence §§ 638, 641 (2nd ed. 1956); Biddle v. National Old Line Insurance Company, 513 S.W.2d 135, 139 (Tex.Civ.App.Dallas 1974, writ ref'd n. r. e.). Appellant's point 6 is overruled. 782 Appellant's point 7 contends the trial court erroneously admitted the written report from the psychiatrist that examined Mrs. Hernandez several months prior to the trial. The purpose of her visit to the psychiatrist was to show that she was now mentally capable of raising the minor even though she had been committed to a mental institution in 1962 for a period of four months. In addition to the psychiatrist's opinion that Mrs. Hernandez was mentally well, his written report stated in effect that the Hernandez children had not had problems with drugs or the law, that Mrs. Hernandez was in good mental condition following her commitment to a mental home for four months in 1962, and that Mrs. Hernandez' mental stability was reflected by her productive healthy family. Even if all of this evidence was erroneously admitted, a reversal of this case would not be required in that the record as a whole does not afford a reasonable belief that such evidence would have caused the rendition of an improper judgment. Rule 434, T.R.C.P.; Ins. Co. of North America v. Asarco, Inc., 562 S.W.2d 557, 562 (Tex.Civ.App.Corpus Christi 1978, writ ref'd n. r. e.). The record is replete with evidence that the Hernandez household is a healthy productive, quiet, peaceful household, with a mentally well adjusted mother. The record also indicates that the Hernandez children do not use drugs, that they attend school and that they have never run away from home. Therefore, looking at all the evidence and that mentioned above, we cannot say that even if the disputed evidence was erroneously admitted that it probably caused the rendition of an improper judgment. Appellant's point 7 is overruled. The judgment of the trial court is affirmed. NOTES [1] All statutory references hereafter will refer to the Probate Code unless otherwise indicated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519975/	385 A.2d 780 (1978) Harry D. EDWARDS, Appellant, v. Meredith C. WOODS, Appellee. No. 10502. District of Columbia Court of Appeals. Argued November 16, 1976. Decided April 28, 1978. 781 George H. Windsor, Washington, D. C., for appellant. 782 F. William Burke, Washington, D. C., for appellee. Before KERN, YEAGLEY, and HARRIS, Associate Judges. HARRIS, Associate Judge: This action to recover possession of real property, see D.C.Code 1973, § 16-1501, involves an analysis of decades-old precedent on the law of purchase money resulting trusts in the context of casual contemporary life-styles. The trial judge made an effort to resolve equitably a confused situation arising from the actions of two people whose financial affairs were disordered and unconventional, as were other aspects of their lives. While we find the nature of the relief granted to be compatible with this jurisdiction's case law, we reverse in part and remand for the further factual findings which are necessary to permit the proper remedy. Appellant Edwards is a self-employed artist, a maker of stained-glass windows. Appellee Woods, now employed elsewhere, was an airline stewardess when the events leading up to this suit occurred. They met, dated regularly, and eventually began living together. Their landlord decided to sell the building in which they shared an apartment, requiring them to move. While faced with that necessity, Edwards received an insurance check in settlement of an accident claim. He used those funds for a down payment on a Capitol Hill house. Major attractions of the house included store space on part of the first floor, where Edwards could make and sell his stained-glass creations, and a second-floor apartment which could be rented. Woods signed the purchase contract, and title was placed in her name. She assumed the first deed of trust and also became liable on a second one. The testimony is in conflict as to subsequent events. Woods claimed that Edwards had given her the money for the down payment as a gift. Edwards claimed that Woods took title in her name solely because she was regularly employed and therefore was better able to obtain financing. He also asserted that Woods agreed that he was to receive title after the second-story apartment had been renovated and rented. Two of the parties' friends gave testimony tending to support Edwards' version. Further, the real estate agent who handled the transaction testified that Edwards had little chance of obtaining credit, and that people who do not want their true property ownership interests known often have title taken in another's name. Edwards fell within such a category, for he was divorced, was responsible for the support of a child, and did not want to have property available to satisfy claims against him. Evidence of the parties' financial dealings after they began living in the house is contradictory and confusing.[1] Payments on the mortgages were made by checks drawn upon Woods' account, and she testified that she made most of the payments. Edwards testified that his dwellingmate made such payments as loans to him. He produced rent checks which named him as the payee after he had renovated the second-story apartment. He also testified that he did not have a separate checking account, and hence used the account of Woods. In 1973 and 1974, Woods reported the rent as taxable income on her personal income tax returns, and from 1972 to 1974 she claimed as deductions the mortgage interest, property taxes, and depreciation. Edwards did not file tax returns for those years. The relationship between the parties eventually cooled, and Woods moved out. Some time after her departure, Woods gave Edwards her key to the house. Once she came back with a locksmith, intending to change the locks, but Edwards returned before the work was finished. He then had different locks installed. Edwards later decided 783 to refinance the house and unsuccessfully tried to induce Woods to convey the title to him. The friction between the parties ultimately led them to court, where each claimed sole ownership of the house. Although the trial court found that a resulting trust had not been established in favor of Edwards, in an effort to reach an equitable result it granted half of each party's prayer and ruled that they jointly own the property. No allocation was made of their respective ownership interests. Edwards appealed; Woods did not. Woods advances several affirmative challenges to the trial court's judgment, but, as noted, she did not file an appeal. See D.C.App.R. 4. Because of that fact, she may not attack the judgment in this court, and may only defend those aspects of the judgment which favored her. See United States v. Reliable Transfer Co., 421 U.S. 397, 401 n.2, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975); Swarb v. Lennox, 405 U.S. 191, 201, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972); Porter v. Straughters, D.C.Mun. App., 86 A.2d 410, 411 (1952). In pursuing her defense on this appeal, Woods is free to urge a rationale different from that utilized by the trial court. See Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 81 L.Ed. 593 (1937); United Optical Workers Union Local 408 v. Sterling Optical Co., 500 F.2d 220, 224 (2d Cir. 1974). The Supreme Court has stated specifically that the cross-appeal rule is a rule of practice which may be dispensed with under appropriate circumstances. See Langnes v. Green, 282 U.S. 531, 538, 51 S.Ct. 243, 75 L.Ed. 520 (1931). See also United Optical Workers v. Sterling Optical Co., supra, at 204; 9 Moore's Federal Practice § 204.11[5], at 947-48 (2d ed. 1975). The rule, however, is well established and should not be discarded lightly. We deviate from it here only to the extent necessitated by justice and the circumstances of this case, to allow the trial court to make the more specific findings of fact which are required where a resulting trust exists. Edwards' principal contention is that the trial court's factual findings are clearly erroneous. To make such a challenge successfully, an appellant must leave this court, after we have studied all of the evidence, 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); Kidwell & Kidwell, Inc. v. W. T. Galliher & Bro., Inc., D.C.App., 282 A.2d 575, 576 (1971); Voight & McMakin Air Conditioning, Inc. v. Property Redevelopment Corp., D.C.App., 276 A.2d 239, 241 (1971). Although each party sought to prove that he or she was the sole owner, the record compels the inference that they intended to share ownership. For example, Edwards supplied the funds for the down payment, while Woods testified that she made the payments on the deeds of trust. The trial court could and did infer that each intended to receive some vested property interest in return for his or her contributions. We could not call such a conclusion either "clearly erroneous" [see Super.Ct. Civ.R. 52(a)] or "plainly wrong" [see D.C. Code 1973, § 17-305(a)]. The record, however, fails to support the trial court's finding that the parties did not intend in effect to establish a resulting trust. A resulting trust is a property relationship designed to effectuate the parties' intent when one party takes title to property for which another has furnished the consideration. See Kosters v. Hoover, 69 App.D.C. 66, 69, 98 F.2d 595, 598 (1938); Taylor v. Mercantile Safe Deposit and Trust Co., 269 Md. 531, 307 A.2d 670, 674 (1973); D. Dobbs, Remedies 240-41 (1973). It is an equitable remedy which must be applied in the instant case to effectuate justice, as formal record title is held by only one of the two parties who share ownership interests in the property. We believe the trial court meant that Woods did not intend for Edwards to be the sole owner. However, there may be a resulting trust of a partial interest in property. See Long v. Scott, 24 App.D.C. 1, 4-5 (1904); Restatement (Second) of Trusts § 454 (1959). The trial court apparently concluded erroneously that a resulting trust must be an all-or-nothing 784 proposition. We interpret the trial court's ruling as no more than a determination that Woods did not intend to give Edwards a beneficial interest in the entire property. Viewed as such, the court's conclusion was really a finding of fact flavored with legal terminology. See Solway Metal Sales, Ltd. v. Baltimore & Ohio Railroad, 120 U.S.App.D.C. 183, 184, 344 F.2d 568, 569 (1965). That finding of fact (i. e., that Edwards was not meant to be the sole owner) is not clearly erroneous.[2] The record, however, contains no basis for determining the proportions of the parties' respective interests in the property, and the case accordingly must be remanded for further findings and a new conclusion on this point. If the parties intended each to have equal (or disproportionate) shares, that intent should be recognized. As we have said, a purchase money resulting trust is a means to enforce the parties' intent. If their intent cannot be found, a resulting trust must be recognized in Edwards' favor in the same proportion as the amount of consideration furnished by him. See Restatement (Second) of Trusts, supra, § 454. The payments of the notes securing the deeds of trust should be included in the trial court's determination of the parties' relative contributions. Cf. Haliday v. Haliday, 56 App.D.C. 179, 182, 11 F.2d 565, 568 (1926) (such payments are sufficient to create a resulting trust). The parties' finances, however, appear to be quite disordered.[3] If the evidence on remand is inadequate to prove what proportionate share of the total payments Edwards made, he will be entitled to a lien on the property to the extent of the value of the contributions he can prove. See Long v. Scott, supra, at 5-6.[4] A person seeking to prove a resulting trust must demonstrate his case by clear and convincing evidence. Haliday v. Haliday, supra, 56 App.D.C. at 183, 11 F.2d at 569; Cohen v. Cohen, 1 App.D.C. 240, 244 (1893); Hill v. Bowen, 8 Ill.2d 527, 134 N.E.2d 769, 772 (1956); Battle v. Allen, 250 Md. 672, 245 A.2d 590, 591 (1968); Restatement (Second) of Trusts, supra, § 458. Such a strict requirement is intended (and is necessary) to protect the sanctity of record titles and to prevent the defrauding of creditors. See Battle v. Allen, supra, 245 A.2d at 591. On remand, Edwards will be obliged to carry this burden of proof in order to show what proportional interest the parties intended for him to have in the property. If he cannot carry the burden of proving the proportional interest he was to have, he will have to meet a comparable burden in proving the extent of the contributions for which he should have an equitable dollar-figure lien.[5] 785 Affirmed in part, reversed in part, and remanded. YEAGLEY, Associate Judge, dissenting: Appellee Woods did not cross-appeal. The majority's disposition of this case, making it possible for the appellee to improve her position, vitiates the cross-appeal rule in this jurisdiction and remands the case under circumstances in which we should finally and equitably resolve this complex litigation. Not having appealed, appellee Woods must be held to have accepted the trial court's resolution of the matter, pursuant to which she was held to be a joint owner of the disputed property. As such, and as the majority recognizes with convincing citation (see page 783, supra), she cannot attack the judgment rendered below, but can only defend it against appellant Edwards' attacks. In her defense of the judgment, however, appellee can urge any rationale or justification "as long as [her] attack will, if upheld result merely in affirmance of the judgment." Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 1 L.Ed.2d 314 (1957). Of the cases cited by the majority, only one permitted affirmative relief for the appellee and that was a case in admiralty. Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931). Although the Court approached the question of appellee's rights as being in a case brought up on certiorari from the circuit rather than a pure admiralty appeal, it observed, "[o]n appeal in admiralty, there is a trial de novo." Id. at 536, 51 S.Ct. at 245. Six years later in 1937, a somewhat new Supreme Court in considering the question began, "[t]he power of an appellate court to modify a decree in equity for the benefit of an appellee in the absence of a cross-appeal is here to be admeasured." In resolving the issue against the appellee, the Court said: Without a cross-appeal, an appellee may "urge in support of a decree any matter appearing in the record although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it" United States v. American Railway Express Co., 265 U.S. 425, 435, [44 S.Ct. 560, 68 L.Ed. 1087]. What he may not do in the absence of a cross-appeal is to "attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below." Ibid. The rule is inveterate and certain.. . . Findings may be revised at the instance of an appellant, if they are against the weight of evidence, where the case is one in equity. This does not mean that they are subject to like revision in behalf of appellees, at all events in circumstances where a revision of the findings carries with it as an incident a revision of the judgment. There is no need at this time to fix the limits of the rule more sharply. "Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken." [Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191-92, 57 S.Ct. 325, 327, 81 L.Ed. 593 (1937) (citations omitted).] More recently, in a case cited by the majority, the Second Circuit refused to reverse an erroneous judgment of the district court in an action to compel arbitration. The court said: Were the issue before us we would have no difficulty holding that the district court erred in declaring Article XXVIII void since the validity of Article XXVIII under section 8(e) is an issue lying initially in the exclusive province of the arbitrator. However, we have no power to pass on this question because of the failure of the Union to appeal. [United Optical Workers Union Local 408 v. Sterling Optical Co., Inc., 500 F.2d 220, 223-24 (2d Cir. 1974).] 786 After a brief discussion, the court concluded: It may well be that the cross-appeal rule is a rule of practice, see Langnes v. Green, 282 U.S. 531, 538, 51 S.Ct. 243, 75 L.Ed. 520 (1931), which we may dispense with in an appropriate case. . . . But the present case is not one calling for an exception to a rule so well-established and of such long usage. [Id. at 224 (citation omitted.] The command of the majority here in remanding, that there be "further findings and a new conclusion," based on the dollar contribution made by each party, requires a full reconsideration in which the appellee may enlarge her half interest in the property and thereby obtain more than a mere affirmance. She can emerge in a much better position as a result of her adversary's appeal. The majority justifies this by deeming the cross-appeal rule "a rule of practice which may be dispensed with under appropriate circumstances," citing Langnes v. Green, supra. I believe that we should follow the current majority view that the rule is a jurisdictional requirement, under which the question of enlarging appellee's rights is not properly before this court. See also, e. g., Gomez v. Wilson, 155 U.S.App. D.C. 242, 245 n.10, 477 F.2d 411, 414 n. 10 (1973); Third National Bank in Nashville v. United States, 454 F.2d 689, 690-91 (6th Cir. 1972); Jamesbury Corp. v. Worcester Valve Co., 443 F.2d 205, 208 n.3 (1st Cir. 1971). Accordingly, if there is to be a remand, we should specify that appellant can be awarded no less upon reconsideration than was allocated to him after the matter was first tried; as to appellee, the judgment is final and her share cannot be enlarged because she did not appeal. Although the trial court believed, erroneously, that it could not impose a partial resulting trust, the effect of its disposition was to do just that. The only stumbling block to accepting its decision is that the parties were held to be joint tenants instead of tenants in common. I would simply correct that conclusion here and affirm the trial court's determination of a one-half interest for each party, but as tenants in common. NOTES [1] Evidence as to the parties' conduct after the creation of a resulting trust (as occurred here) is admissible for whatever light it might shed on their intent at the time of the disputed transaction. Haliday v. Haliday, 56 App.D.C. 179, 182, 11 F.2d 565, 568 (1926). [2] If our interpretation is incorrect, the trial court will have an opportunity to clarify the question on remand. [3] This factor leads us to observe that the case appears to be uniquely appropriate for settlement, rather than further litigation, on remand. [4] The record indicates that Edwards did a considerable amount of personal work in the renovation process. There would appear to be no reason for the trial court not to determine the value thereof in deciding either the proportionate share of Edwards' interest in the property as a whole or the value of his equitable lien. See Fulp v. Fulp, 264 N.C. 20, 140 S.E.2d 708, 713 (1965); Iverson v. Iverson, 87 S.D. 628, 213 N.W.2d 708, 711 (1973). [5] Appellant Edwards also contends that the Statute of Frauds, D.C.Code 1973, § 28-3503, does not apply to resulting trusts, and that the court thus may disregard the documentary form of the transaction in ascertaining whether a resulting trust exists. It is true that the Statute of Frauds does not apply to resulting trusts. See Smithsonian Institution v. Meech, 169 U.S. 398, 407, 18 S.Ct. 396, 42 L.Ed. 398 (1898); Haliday v. Haliday, supra, 56 App.D.C. at 181, 11 F.2d at 567; Dahlgren v. Dahlgren, 55 App.D.C. 52, 55, 1 F.2d 755, 758, cert. denied, 266 U.S. 626, 45 S.Ct. 125, 69 L.Ed. 475 (1924); Restatement (Second) of Trusts, supra, § 406. They come within § 28-3503's exception for trusts "aris[ing] or result[ing] by operation of law." See Smithsonian Institution v. Meech, supra. The exception has existed since the enactment of the first Statute of Frauds three centuries ago [29 Car. 2, c. 3 (1677)], and is universally recognized. See G. Bogert & G. Bogert, The Law of Trusts and Trustees § 67 (2d ed. 1965). However, while Edwards correctly advances such a proposition, his challenge to the trial court's ruling is invalid since the trial court received nondocumentary evidence showing that a resulting trust had been established.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519976/	464 F.Supp. 189 (1979) UNITED STATES of America, Plaintiff, v. William E. CAWLEY and Berniece B. Cawley, his wife, Leroy John Score and Willa Y. Score, his wife, and Cathryn H. Pike, widow of James L. Pike, now deceased, and Edward L. Merseth and Wanda W. Merseth, his wife, Defendants. Civ. No. C-76-18. United States District Court, E. D. Washington. January 9, 1979. James J. Gillespie, U. S. Atty., Robert M. Sweeney, Asst. U. S. Atty., Spokane, Wash., for plaintiff. 190 Jerry J. Moberg, Ries & Kenison, Moses Lake, Wash., for defendants. MEMORANDUM FITZGERALD, District Judge, sitting by designation. The action was brought by the United States to recover money allegedly owed by the defendants, all of whom are guarantors to a Small Business Administration (SBA) loan made to a Washington corporation, Archdomes, Inc., (hereinafter "Archdomes"). As was noted in findings made on the record in this action, Seattle First National Bank received Archdomes' note on June 30, 1971. The loan of $350,000 was disbursed to Archdomes on July 2, 1971, with the first payment scheduled for the end of August, 1971, with 120 equal monthly payments and annual interest of 7¾%. The first and second payments were made. However, after October, 1971, Archdomes fell delinquent. Although the terms of the SBA bank agreement required Seattle-First National Bank to notify the SBA within thirty days of delinquent payments, for eleven months the bank failed to notify the agency. In early September, 1972, the SBA made a specific written inquiry about delinquency to the bank manager in charge of the loan and on September 19, 1972, the SBA finally received notice of the delinquent account. Fourteen months later, November 21, 1973, the agency purchased the loan from Seattle-First National Bank and on December 19, 1973, the SBA made demand on the guarantors. According to the demand, the balance as of October 31, 1973, was $348,435 with interest accruing at 7¾% annually. Because of the bank's delay in notifying the SBA, the agency held the bank liable for interest that accrued during the period of delay. As I noted in the findings, that amount, some $24,710, will be reduced from the total due from the guarantors to the agency.[1] I. LIQUIDATION OF COLLATERAL In addition to making demands on the guarantors, the SBA began to move to liquidate Archdomes' property which had secured the loan and began to investigate the possible liquidation of stock which had also been pledged as collateral for the loan. As noted in the findings of fact, there was considerable dispute about the value of Archdomes' property which was covered by the security agreement. The SBA took the position that the value listed on the security agreement has greatly depreciated whereas the defendants contended that there had been an appreciation in the value of the property. As stated in the findings, since the parties originally agreed to a value of $162,734, that agreed-upon figure is the most reliable value of the property which the SBA moved to liquidate. A. The Commercially Unreasonable Disposition and Its Effect About the same time that the SBA made demand on the guarantors, the agency contacted an auction company, Morton's Supply, about the potential disposition of the property covered by the security agreement. The disposition was to be handled by Mr. James Poe of Morton's and prior to Christmas, 1973, he went to the warehouse at the Port of Pasco to look over Archdomes' former facilities. The SBA did not provide Mr. Poe with a copy of the security agreement inventory and it is apparent that Mr. Poe considered all property at the Archdomes' section of the warehouse to be covered by the security agreement. On December 26, 1973, the SBA portfolio supervisor wrote Mr. Poe regarding the Archdomes' equipment. The letter, in its entirety, stated: This will be your authority to act as our agent to hold a Uniform Commercial Code sale of the personal property of the above firm, now located at the Port of Pasco, or to remove it elsewhere for a future sale. 191 It is apparent from that letter and the subsequent letter of January 26, 1974, from the agency to Mr. Poe, that the SBA was instructing Poe to sell all equipment at the warehouse. As was outlined in the findings, Poe moved rapidly to sell the equipment even though storage space was available at the Port of Pasco. There was no advertisement of the sale and there was very little effort by Mr. Poe as agent of the SBA to locate potential purchasers for the Archdomes' equipment. There was an additional failure to comply with a requirement of Uniform Commercial Code, § 9-504(3), as the debtor, Archdomes, was not given notice of the sale. It is against this factual backdrop that the effect of SBA's sale on the amount of Archdomes' deficiency must be considered. On the threshold question of whether federal or state law defines the rights of the parties, it should be noted that although some circuits have held[2] that when there is a "sufficient federal interest" federal law is applicable to SBA negotiated loans, the Ninth Circuit en banc considered the state and federal policies at stake as required by United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966) and held that a district court should apply applicable state law. United States v. MacKenzie, 510 F.2d 39 (9th Cir. 1975). Thus, Washington's statutes and case law are determinative. Additionally, should a situation arise which has not been specifically addressed by Washington's highest court, I conclude that disposition of the issue must be founded on a projection of the existing Washington law. The duty of a secured creditor to dispose of collateral in a commercially reasonable manner is found at Revised Code of Washington 62A.9-504[3] and the Washington Supreme Court has established the standards for such commercial reasonableness in Foster v. Knutson, 84 Wash.2d 538, 527 P.2d 1108, 1114-15 (1974), which include adequate notice of the sale to the debtor and the public. Under these standards, the SBA sale of Archdomes' collateral constituted a commercially unreasonable sale. However, Washington's highest court has not yet enunciated the effect of a commercially unreasonable disposition on a debtor's deficiency. The parties contend that this court should be guided by the decisions of two lower Washington courts, Grant County Tractor Co. v. Nuss, 6 Wash. App. 866, 496 P.2d 966 (1972) and Commercial Credit Corporation v. Wollgast, 11 Wash.App. 117, 521 P.2d 1191 (1974). Those cases, as well as Mount Vernon Dodge, Inc. v. Seattle-First Nat. Bank, 18 Wash.App. 569, 570 P.2d 702 (1977), are distinguishable 192 in fact and law from the instant action, in that they do not directly address the issue of whether the value of the collateral may offset all or part of a deficiency when the debtor has not been given notice of the sale and when the secured creditor is otherwise derelict in the collateral disposition. Further, the questions left open by the Washington Supreme Court in Foster v. Knutson, above, cannot be definitively answered by lower Washington courts.[4] Upon reviewing the language and the holdings in Foster v. Knutson and in the three courts of appeal cases noted above, I conclude that were the Washington Supreme Court to face this issue of no notice to the debtor and a commercially unreasonable disposition, the court would hold that the secured creditor faces a rebuttable presumption that the value of the collateral is at least equal to the amount of the outstanding debts. The Alaska Supreme Court has recently addressed some of the same issues presented by the sale of the Archdomes' equipment in the case of Kobuk Eng., Etc. v. Superior Tank & Const., 568 P.2d 1007 (1977), and that well-reasoned decision extensively reviews the authorities in this area: The next question deals with the effect of a sale of collateral which is not conducted in a commercially reasonable manner. Some authorities hold that the creditor is not entitled to any deficiency judgment against the debtor. For example, Anderson in his treatise on the Uniform Commercial Code states: "The creditor is not entitled to a deficiency judgment unless the sale of the collateral was conducted in a manner which was commercially reasonable." [4 Anderson, U.C.C. § 9-504:28 at 623 (1971)] Apparently, this is the view of the majority of the courts which have passed on the question. [See Clark Leasing Corp. v. White Sands Forest Products, Inc., 87 N.M. 451, 535 P.2d 1077, 1081 (1975).] However, we consider this apparent majority view to be repugnant to the spirit of the UCC. We agree with the Supreme Court of New Mexico, which has stated: The complete denial of the deficiency smacks of the punitive and is directly contrary to Article Nine's underlying theme of commercial reasonableness. `If the secured party has reimbursed the debtor for any losses incurred by improper sale, he has approximated the commercially reasonable sale. Thus, he should be allowed to receive the money which would have been due if the sale had been commercially reasonable.' [Clark Leasing Corp. [535 P.2d] at 1081-82] We hold that the commercially unreasonable sale made by [the secured creditor] acts to decrease the amount of the deficiency judgment which [the creditor] is entitled to recover from [the debtor]. The fair and reasonable value of the collateral at the time of repossession should be offset against the balance due on the security agreement. Where the collateral has been sold in a sale that does not comply with the provisions of the UCC, there is a rebuttable presumption that the fair and reasonable value of the collateral is at least equal to the amount of the outstanding debt. In order to overcome that presumption, the secured party has the burden of either (1) obtaining a fair and reasonable appraisal at or near the time of repossession, or (2) producing convincing evidence of the value of the collateral. In order to meet the latter burden, the secured creditor is required to bring forward proof of the condition of the collateral and the usual price of items of like condition. Kobuk Eng., Etc. at 1013-14 [footnotes omitted]. Here, the SBA did not have to resort to the collateral but could have gone directly against the guarantors for the deficiency. However, since the SBA chose to dispose of the collateral, it was required to carry out that sale in a commercially reasonable manner. Given the unreasonable disposition 193 which occurred, it became incumbent upon the SBA to establish the "fair and reasonable value of the collateral at the time of repossession." At trial, however, insufficient evidence was introduced by the government to establish the value of the collateral when the SBA repossessed. Rather, the government asserted that the value of the inventoried collateral had greatly decreased from the value previously agreed upon, but offered no proof of that decrease. Accordingly, I found that the value of the collateral at the time of the commercially unreasonable sale was the previously agreed upon value of $162,734. Such a holding rebuts the presumption that the entire deficiency is extinguished by the collateral improperly disposed of at the sale, and the established value must be used to offset the existing deficiency. The deficiency at the time of the sale should be reduced by $162,734 as of February 1, 1974, the approximate date of the sale. B. Related Matters In order to determine the full amount that the deficiency should be reduced it is also necessary to consider two additional matters. The sale by Morton's Supply netted $12,043, however the SBA used $7,262 of those receipts to satisfy a tax lien owed by Archdomes. After paying off the tax lien and applying the remaining $4,780, the value of the collateral "credit" is thus reduced to $150,691. The remaining matter pertains to the Archdomes' demonstration model located near the Pasco warehouse. Although that building prototype was not carried on the inventory of the security agreement, it was mistakenly disassembled by Morton's Supply and sold. In my findings I place a value of $5,000 on that building and that $5,000 shall be credited to Archdomes as of February 1, 1974. The amount due on February 1, 1974, shall be reduced by the sum of $155,691 as of that date. C. The Data Pathing-NCR Stock In addition to the pledged equipment carried on the security agreement, the Archdomes loan was secured by 13,350 shares of Data Pathing, Inc. stock. After the default, the stock was transferred to the SBA. In June of 1976 Data Pathing merged with National Cash Register, and the 13,350 shares of Data Pathing were converted into 5,444 shares of NCR stock. The SBA then sold the 5,444 shares of NCR on the New York Stock Exchange, recognizing a net recovery of $199,831. That amount was applied against the balance of the deficiency effective September 30, 1976. Neither the amount of that recovery nor the fact that the recovery reduces the amount due from the individual guarantors is disputed by the parties. II. THE UNREASONABLE SALE AND THE GUARANTORS Finally it is necessary to address the parties' remaining dispute: the effect of the SBA's sale of Archdomes' Pasco equipment on the guarantors' obligation to reduce the remaining deficiency. The government asserts that even if the sale were commercially unreasonable, only the debtor (Archdomes) can benefit from any extinguishing of the deficiency. Not surprisingly, the defendant guarantors strenuously maintain that under Washington law the deficiency obligation of the guarantors is likewise reduced by the commercially unreasonable conduct of the SBA. Each of the guarantors signed a guaranty in the following terms: General Guaranty In consideration of financial accommodations given or to be given to Archdomes Inc. (herein called the Customer) By SEATTLE-FIRST NATIONAL BANK (herein called the Bank), and in consideration of the Bank's agreeing to deal with the Customer, the undersigned, on behalf of themselves and of the marital communities consisting of themselves and their respective wives, if married, hereby jointly and severally guarantee payment to the Bank of all liabilities and indebtedness which the Customer has incurred or is under or may incur or be 194 under to the Bank, whether arising from dealings between the Bank and the Customer or from other dealings by which the Bank may become in any way a creditor of the Customer. The Bank may apply all money received from the Customer or otherwise or from collateral upon such part of the Customer's indebtedness as the Bank may think best, without in any way limiting or lessening the liabilities of the undersigned under this guaranty. The Bank shall not be bound to exhaust its recourse nor to take any action against the Customer or other parties or on the collateral it may hold before being entitled to payment by the undersigned of all amounts hereby guaranteed, but may make such demands and take such actions as it deems advisable. This shall be a continuing guaranty and shall be binding without notice to the undersigned of its acceptance, and shall cover all liabilities which the Customer may incur or be under until the undersigned shall have given the Bank notice in writing to make no further advances on the security of this guaranty; provided that such notice by any one or more of the undersigned or other guarantor shall not lessen nor diminish in any way the liability of the undersigned on any indebtedness or liability incurred prior to receipt by the Bank of such notice, nor lessen nor diminish the liability of others of the undersigned who shall not give such notice; and in the event of such notice the Bank may cease to make any further advances to the Customer. Notice of default on the part of the Customer is hereby waived; and the undersigned jointly and severally agree to remain bound notwithstanding any extensions or renewals of any indebtedness or the liabilities hereby guaranteed or any part thereof; and consent is hereby given to the Bank to make such renewals and extensions as the Bank at its option may choose to grant or accept; and the Bank may at its option further compound and settle with the Customer or any of the undersigned or other guarantor and surrender any securities which it may now or hereafter hold belonging to the Customer, without notice to any of the undersigned and without affecting in any way the obligations of any of the undersigned to the Bank. If the Customer is a corporation, the undersigned guarantee and represent that they are stockholders, or directors or officers and/or are financially interested in the Customer, and if married, their marital communities are so interested. [Emphasis added] All rights of enforcement of the guaranty have been properly assigned from Seattle-First National Bank to the agency. The government argued both at trial and in its post-trial memorandum that the case of First National Park Bank v. Johnson, 553 F.2d 599 (9th Cir. 1977) controls the present action.[5] However, that case is not applicable since it interprets Montana rather than Washington law. Further, the implication of that panel's holding is that while ordinarily a guarantor is not afforded the same protections as a debtor, "willful or grossly negligent waste or misconduct"[6] by a repossessing creditor may expand U.C.C. protections to guarantors. The defendant guarantors simply argue that First National Park Bank is factually different from this litigation and, thus, should not be considered. No case has been found dealing with this issue in Washington but it is clear that under Washington law a guarantor may waive certain defenses. Fruehauf Trailer 195 Co. of Canada, Ltd. v. Chandler, 67 Wash.2d 704, 409 P.2d 651 (1966). In Fruehauf several stockholders partially guaranteed a conditional sales contract of trailers to their corporation, PIX. When PIX defaulted Fruehauf repossessed all the trailers and then discharged PIX from its liability on the conditional sales contract as having "been fully paid and satisfied." Fruehauf, 409 P.2d at 653. After Fruehauf disposed of the trailers, it then moved against the guarantors for some $12,000. The guarantors defended on the basis that when the obligation of the principal had been satisfied, the liability of the guarantors are extinguished. While Fruehauf conceded this point, it argued that the guarantors had explicitly waived their rights to this defense and at trial Fruehauf made an offer of proof that it had incurred $12,000 in expenses after re-sale of the trailers. The trial court rejected the offer of proof but on appeal the Washington Supreme Court reversed, holding that the defense was not available to the guarantors when the guaranty contained clear language of waiver and stated "a fixed or determinable amount" for which the guarantors would be liable. As the guarantors had agreed to such an amount 10% of the lossthe Washington court emphasized that guarantors could indeed waive such defenses and ordered a new trial and a judgment consistent with the holdings of the appellate court. While Fruehauf offers limited support for the government's position that the Archdomes' guarantors waived the defense of the partial extinguishing of Archdomes' obligation, the case offers little guidance for situations such as this one. In Fruehauf, there was no evidence that the repossession and re-sale violated Washington's U.C.C. statute; here, not only was no notice given to the debtor of the sale of the goods, but it is obvious from the trial testimony that virtually no effort was made to locate buyers for the equipment. Not surprisingly, the resulting sale produced less than ten cents on the dollar. I conclude the Supreme Court of Washington would agree with the implication of Judge Kennedy's holding in First National Park Bank that given the grossly negligent misconduct and resulting waste produced by the commercially unreasonable sale, the responsibilities of the guarantors of the Archdomes' loan are reduced by the same amount as the debtor.[7] I find that the contrary result would contravene the spirit of the Washington U.C.C. statute, for if a secured creditor could always recover against the guarantors, there would be no restraints on a repossessing secured creditor whenever there were guarantors. Such a creditor would know that no matter how commercially outrageous the repossession and resale, the guarantors would always be liable for the resultant deficiency. I conclude that the obligation of the guarantors must be reduced by the same amount, $155,691, as the obligation of the debtor. This reduction will also date back to February 1, 1974. The defendants have moved for a limited new trial and to strike the affidavit of Robert Wiebe. These two motions and the matter of the $24,700 interest payment will be set for a hearing at a time convenient for the Court and counsel. SO ORDERED. NOTES [1] In a post-trial affidavit the government has stated that this amount and more was properly credited to Archdomes' account. This matter will be set for hearing. [2] For example, see United States v. Beardslee, 562 F.2d 1016, 1022 (6th Cir. 1977) which holds that the recent promulgation of federal regulations pursuant to Congressional authority provides the "federal interest" which was found lacking in United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966), and Chief Judge Coffin's opinion in United States v. Olsen, 515 F.2d 1269, 1271 (1st Cir. 1975). [3] The relevant portions are as follows: "62A.9-504 Secured party's right to dispose of collateral after default; effect of disposition. (1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. . . . "(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale." [4] Washington is divided into three judicial divisions with each division having a Court of Appeal. Those courts are immediately under the Washington Supreme Court. [5] In First National Park Bank, the secured creditor bank failed to give notice to the debtor before repossessing the collateral airplanes. The bank sold the aircraft in a sale the trial court found to be commercially reasonable and then moved against the guarantors for the deficiency. The Court of Appeals affirmed that as the guarantors had, under the guaranty, waived their right to notice and as there was an absence of willful or grossly negligent conduct by the secured creditor, the guarantors were liable for the deficiency. [6] First National Park Bank at 602. [7] In considering a similar set of facts, Judge Godbold noted: A guarantor, who is in broad terms a type of surety, has a beneficial interest in collateral held by the creditor for the principal debt, and the creditor must exercise good faith in preserving, applying and disposing of the security and the proceeds, not only for the sake of the creditor's security but in recognition of the guarantor's obligation. Misapplication of security is a defense to the guarantor in an action against him on his obligation. The guarantor cannot compel the creditor to go against the security (and the guaranty so states), but once the creditor does so he must do so without negligence and with due regard for the guarantor's interest in preservation of it and disposition of it for a proper value, for had the creditor not gone after the security the value of it would be subject to the guarantor's rights as subrogee of the creditor. [Footnotes omitted.] Frederick v. U. S., 386 F.2d 481, 486 (5th Cir. 1967).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519992/	464 F.Supp. 227 (1979) UNITED STATES of America, Plaintiff, v. Albert M. LEFKOWITZ, Edward W. Babic, Defendants. UNITED STATES of America, Plaintiff, v. Patricia SULLIVAN, Defendant. Nos. CR78-758-RMT & CR78-717-F. United States District Court, C. D. California. January 18, 1979. 228 U. S. Atty. Andrea Sheridan Ordin, and Asst. U. S. Atty. Steven Kramer, Los Angeles, Cal., for plaintiff. Bruce I. Hochman, Beverly Hills, Cal., for defendant Babic. 229 Flax & Rosenfield, Los Angeles, Cal., for defendant Lefkowitz. OPINION TAKASUGI, District Judge. Defendant Albert Lefkowitz (herein "Lefkowitz"), Patricia Sullivan (herein "Sullivan"), and Edward Babic (herein "Babic") have moved this court to suppress evidence seized by Internal Revenue Service (herein "IRS") agents pursuant to a search warrant. Adjudication of this motion rests upon the sufficiency of the affidavits of Martin Laffer (herein "Laffer"), Special Agent for the Criminal Investigation Division of the IRS, in establishing probable cause to search and seize the items sought to be suppressed. Accordingly, analysis of the present motion must begin by examining the affidavits[1] of Special Agent Laffer made to the Magistrate, who issued two search warrants based solely upon the affidavits. The affidavits state that on or about June 12, 1975, affiant served an administrative summons, under Section 7602 of the Internal Revenue Code, for the production of corporate records of Savon Rent-a-Car, Inc.; Savings Rent-a-Car, Inc.; Best Rate Rent-a-Car, Inc.; N/U Rent-a-Car, Inc.; Value Rent-a-Car, Inc.; Rent-a-Bug, Inc.; Barnhart-Morrow Consolidated, Inc.; National United Industries, Inc.; and National United Leasing, Inc., on defendant Lefkowitz, president of said corporations, and Martin Fisher, controller of said corporations. On June 23, 1975, in response to the summons, Lefkowitz, Martin Fisher, and defendant Babic, as attorney for Lefkowitz and Martin Fisher, appeared at the IRS office without any of the summoned records. Babic informed the affiant that "many of the records summoned did not exist, had been destroyed or could not be located," but offered to provide any existing records at a later date. On July 14, 1975, Babic and Martin Fisher met with affiant and IRS agent Lindholm at their corporate offices (9171 Wilshire Blvd., Suite 335, Beverly Hills), at which time some corporate records, including journals, minute books, and other documents, which had been requested in the June 12, 1975 summons, were provided. On November 7 and 10, 1975, the affiant received information from a confidential informant, whose identity was revealed to this court through an in camera lodging as Helen Lefkowitz, defendant Lefkowitz's wife.[2] The informant was married to Lefkowitz on August 24, 1952, separated in July or August, 1975, and divorced in 1977. Sullivan, who was/is secretary of some of the corporations, began living with Lefkowitz in September, 1975, prior to the time affiant received information from Helen Lefkowitz. Helen Lefkowitz worked at the corporate offices. The information provided by her related to: (1) the re-creation, omissions, and alterations of the 1973 cash receipts and cash disbursement journal, which were provided to the IRS on July 14, 1975, and (2) the relocation of summoned corporate records. Some of the corporate records were removed from the corporate offices prior to the July 14, 1975 meeting with the IRS and were returned to said offices after that meeting. During this meeting, said records were located in another office on the same floor as that of the corporate offices. Additionally, she provided information that other records were packed in boxes and moved from the corporate offices to Sullivan's apartment, and later (in September 1975) from Sullivan's apartment to Lefkowitz's residence. In addition to Helen Lefkowitz's information, the affidavits included information provided by Marc Nestico (herein "Nestico"). 230 Through an interview with Nestico, a past employee of National United Industries, Inc., affiant learned that Nestico had removed boxes containing corporate records from Sullivan's apartment to Lefkowitz's home pursuant to the directions of Lefkowitz. Nestico further informed the affiant that "Albert Lefkowitz told him that the boxes were important and, Nestico, was not to tell anyone about them." Pursuant to the information stated above, along with other information provided in the affidavits, the Magistrate issued two search warrants: one to search the corporate offices and the other to search Lefkowitz's residence. At no time, however, was the identity of the informant revealed to the Magistrate. Both warrants were then executed. Agent Laffer was with the team searching the corporate offices and agent Lindholm headed the team searching Lefkowitz's residence. The search of the corporate offices revealed a number of records that were mentioned in the summons, but not the search warrant. Lefkowitz's permission was obtained to microfilm said records. A phone call was then received from the IRS team searching the Lefkowitz residence. The call relayed information to the effect that certain records were found at the residence including: (1) some that were covered in the summons but not in the warrant, and (2) others that were not covered by either the summons or warrant. When Lefkowitz was asked for permission to microfilm records described in (2), Lefkowitz first decided to call Babic. Over the phone, Babic gave no objection to microfilming the records called for in the summons, but told IRS agent McManigal to prepare a list of records described in (2) and issue a summons for their production. Among the items not described in the warrant or summons found during the search was an allegedly authentic 1973 cash receipt and cash disbursement journal of N/U Rent-a-Car, Inc. Lefkowitz was served with a summons for production of records at the close of the search of his residence. On December 1, 1975, Lefkowitz and Babic appeared at the IRS office and delivered the summoned records under protest. I STANDING Before reaching the legality of the search and the substantive issues raised, the threshold question of standing must first be addressed. The government contends that the defendants lack standing to suppress the evidence seized at the corporate offices. Defendants Lefkowitz and Sullivan were corporate officers of all or most of the corporations whose offices, located in suite 335, 9171 Wilshire Blvd. (hereinafter "suite"), were searched. Both defendants were physically present at the suite during the search. Lefkowitz asserts, by virtue of his presence, that he has standing to challenge the search and seizure. This argument, however, is without merit. Mere presence, in and of itself, has been rejected by the Supreme Court, in Rakas v. Illinois, ___ U.S. ___, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), as a basis for standing. A defendant who seeks to exclude evidence must establish that the search or seizure violated his or her Fourth Amendment rights, which in turn "requires a determination of whether the disputed search and seizure has infringed an interest of defendant which the Fourth Amendment was designed to protect." Id. at ___, 99 S.Ct. at 429. Examination of the facts, nevertheless, reveals a sufficient proprietary interest in the suite, which was the target of the search and where corporate records were seized, to impart standing upon both Lefkowitz and Sullivan. The suite was not only the corporate offices of the corporations whose records were seized of which Lefkowitz and Sullivan acted as officers, but was also where defendants Lefkowitz and Sullivan maintained their place of employment. "It has long been settled that one has standing to object to a search of his [or her] office, as well as of his [or her] 231 home." Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). The government urges this court to limit standing to the search conducted of Lefkowitz's and Sullivan's own offices and desks at the corporate offices and not to any other areas in the suite. The suggested limitation must be rejected by this court. The fact that Lefkowitz and Sullivan did not reserve exclusive use of the entire suite does not, in and of itself, vitiate a finding of a reasonable expectation of privacy. See Mancusi v. DeForte, supra at 368-9, 88 S.Ct. 2120. The suite was apparently not open to the general public. Both Lefkowitz and Sullivan could reasonably expect that the "private" suite, where both were employed, would be permissibly entered only by the employees of the corporations and those individuals receiving permission from the appropriate individuals. This expectation of privacy would be infringed, as it was in the case at bar, by the examination and seizure of such corporate records by government officials. While this court finds standing as to Lefkowitz and Sullivan, defendant Babic's assertion of standing is rejected. Babic, whose place of employment was not at the suite, has not made a sufficient showing of a possessory or proprietary interest in the area searched, or the property seized. II FACIAL EXAMINATION OF AFFIDAVIT Defendants challenge the validity of the subject search warrants, contending that they were not issued upon probable cause in violation of the Fourth Amendment to the Constitution. Based upon a facial examination of the warrants and the affidavits of agent Laffer, incorporated in the warrants, this court finds that there is probable cause to support the issuance of the warrants. Determining the sufficiency of the search warrants requires a finding of probable cause to believe that a crime has been committed and that evidence of the crime will be found at the location to be searched. Laffer's affidavits indicate, based upon the personal knowledge of informants, that some corporate records summoned by the IRS, which defendant Babic represented to affiant "did not exist, had been destroyed or could not be located," did in fact exist and were removed from the corporate offices. Additionally, it appears from the affidavits that some records, which were provided to affiant, were actually prepared subsequent to the issuance of the summons, backdated, and altered. The locations searched pursuant to the subject warrants were the corporate offices and Lefkowitz's residence. According to the affidavits, corporate records could be traced to both Lefkowitz's residence and the corporate offices. In the case at bar, finding probable cause requires only a finding that the informants are credible. When probable cause is based, in part, on information supplied by an informant, the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), requires that the Magistrate issuing the warrant be informed of: (1) some of the underlying circumstances from which the informant draws his or her conclusions, and (2) some of the underlying circumstances from which the affiant officer concluded that the informant was "credible," or his information "reliable." Laffer's affidavits utilize information provided by two untested informants: (1) a confidential source, and (2) Nestico, a former employee of National United Industries, Inc., one of the corporations of which defendant Lefkowitz was president and defendant Sullivan was secretary. It is readily ascertainable from the affidavits that the information provided by both informants was based on personal knowledge. Given that the informants were untested, the affiant's conclusion that the informants 232 were credible was based on sufficient corroboration. The corroborated information provided by the confidential informant included: (1) the location of Lefkowitz's bank accounts, (2) the fact that Lefkowitz's residence was remodeled by an employee of National United Industries, Inc., (3) the destinations of personal trips taken by members of Lefkowitz's family, and (4) the fact that Lefkowitz received a $25,000 loan from his sister, which was repaid by National United Industries, Inc. Although most of the corroborated facts were arguably more related to Lefkowitz's personal life rather than to his corporate activities, the extensiveness of the corroborated information, considered together with the information regarding the employee of National United Industries, Inc., indicates more than sufficient knowledge of Lefkowitz to support a finding of reliability with respect to information provided on Lefkowitz's corporate activities. Nestico's information is also reliable since it was corroborated by a disinterested third party who informed the affiant of her observation of Nestico's removal of "six to eight cardboard boxes from the [Sullivan] apartment to his vehicle in October 1975." Additionally, the informants tend to corroborate each other in that the information provided by each informant supplies a separate but connecting link in the movement of the corporate records. Therefore, the affidavits are sufficient on its face to support the Magistrate's finding of probable cause. III CHALLENGE OF VERACITY OF AFFIDAVIT Defendants' challenge of the search warrant's validity goes behind the warrant to question the veracity of the supporting affidavits. Defendants contend that the non-disclosure to the Magistrate of the identity of the confidential informant, vitiates the warrant. Defendants' contentions are that the disclosure of the informant's identity to the Magistrate would have revealed the government's use of Lefkowitz's wife as an informant, which is both a violation of Lefkowitz's Fourth Amendment rights and a violation of Lefkowitz's marital privileges. Defendants contend that either violation necessitates that the information provided and the fruits thereof be stricken from the affidavits. In order to consider the merits of this contention, the court must first determine whether going behind the four corners of the affidavit is warranted. Generally, the determination of probable cause, and the scope of judicial review thereof, is limited to the four corners of the affidavit. United States v. Anderson, 453 F.2d 174 (9th Cir. 1971). In United States v. Damitz, 495 F.2d 50 (9th Cir. 1974), the Ninth Circuit addressed a criminal defendant's attack on a search warrant challenging the veracity of the supporting affidavit and held, in that case, that it was proper for the trial court to allow such a challenge. The warrant issued therein was based on an affidavit of a third party, not a government agent, and contained false statements. The court held that "if portions of the affidavit that are true are sufficient to show probable cause, the warrant is valid, even though other portions of the affidavit are false . . . ." Id. at 55. The court went on to state: "Assuming arguendo that the affidavit here does not constitute probable cause to issue a search warrant, we hold alternatively that good faith reliance by the government, including the arresting agents and the Assistant United States Attorney, on the knowingly and materially false statements of a nongovernmental affiant will support an affidavit sufficient on its face." Id. In Damitz, the court expressly left open the case where the affiant was a government agent, and stated that such a case might be different. Clearly, such a case assumes a lack of good faith on the part of the government agent/affiant, and, unlike the Damitz case, goes to the heart of the purpose of the exclusionary rule. 233 The Damitz court referred to the deterrence of lawless police action as the basic purpose of the Fourth Amendment and the exclusionary rule. The court stated that "[t]his is why the intentional misstatement by an affiant who is a federal agent may vitiate the affidavit, the warrant and the search." Id. at 56. Subsequent to Damitz, the Supreme Court addressed the same question and has modified the answer. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), Justice Blackmun stated that the issue was whether a criminal defendant ever has "the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant . . . ." Id. at 155, 98 S.Ct. at 2676, 57 L.Ed.2d at 672. The Court, in Franks, responded by stating: "[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id. The case at bar differs from Franks in that here the misstatement is the omission by the government affiant in failing to inform the Magistrate of the confidential informant's identity, rather than an affirmative false statement. However, there appears to be no logical reason to treat an omission differently from an affirmative statement, provided that the omission produces the same practical effect as does an affirmative statement, i. e., it leads to a misconception. The preliminary question here is whether the informant's identity should have been disclosed to the Magistrate. Defendants claim that it should have been disclosed in order to enable the Magistrate to adequately determine: (1) the informant's credibility, and (2) whether the use of Lefkowitz's wife as an informant constituted an unreasonable search or violation of the marital privilege.[3] Although this court finds no constitutional or marital privilege violation in using a spouse/informant, this court agrees with defendants' first contention that the informant's identity should have been disclosed to the Magistrate because of the critical effect it would have had, under the circumstances of this case, in the determination of the informant's credibility. In this case, the confidential informant was not only present at the times during which corporate records were allegedly altered and concealed, but she was also the recently estranged wife of Lefkowitz. Under these circumstances, the informant may have harbored an antagonistic state of mind, which was not ascertainable on the face of the affidavit, and such state of mind could have affected the reliability of her information. Revealing the informant's identity to the Magistrate would have appropriately allowed the Magistrate to consider these factors in determining the informant's credibility. *234 However, in this case, because of the extensiveness of the corroboration, even with the knowledge of the informant's identity, the Magistrate could still have found the informant credible and, therefore, the information provided properly usable. Hence, correcting the misstatement is not material to the finding of probable cause. Therefore, since the affidavit would still be sufficient to establish probable cause even if the omission were cured, a hearing under Franks is not warranted.[4] Consequently, upon a facial examination, the warrant affidavit is sufficient to establish probable cause, and accordingly, defendants' motion to dismiss is denied. NOTES [1] While there were two affidavits presented to the Magistrate, they were identical. [2] During the hearing on this suppression motion, this court revealed the informant's identity as Helen Lefkowitz, the wife of defendant Lefkowitz. Said disclosure was made because the information provided by her and used in the affidavit clearly indicates that her testimony is relevant to the issue of defendants' guilt and, as such, knowledge of her identity would be necessary in preparation for the defense. [3] The interest raised by Lefkowitz in preventing his wife from testifying against him has been recognized in terms of the evidentiary rule of marital privilege, but such privilege does not rise to the stature of a constitutional right. United States v. Doe, 478 F.2d 194 (1st Cir. 1973); Matter of September, 1975 Special Grand Jury, 435 F.Supp. 538 (N.D.Ind.1977). Also, the marital privilege is inapplicable here since the spouse/informant has not testified, but rather has only provided information to a government agency. [4] Defendants claim that probable cause for the issuance of a search warrant did not exist at the time of issuancethat the facts underlying the warrant were too remote in time from the execution. This claim, however, is rejected. The corporate records had been seen at the corporate offices by Helen Lefkowitz and at the Lefkowitzs' residence by Nestico as recently as mid-October, 1975 and the end of October, 1975, respectively. The warrants were executed on November 17, 1975. This passage of time is not sufficient to undermine the finding of probable cause in light of the type of evidence sought to be seized and the area searched.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519995/	254 Pa. Superior Ct. 148 (1978) 385 A.2d 568 COMMONWEALTH of Pennsylvania v. Thaddeus BALL, Appellant. Superior Court of Pennsylvania. Submitted December 9, 1976. Decided April 13, 1978. 149 Robert W. Lambert, Indiana, and Barry P. Tumpson, Clearfield, for appellant. Laurence B. Seaman and Timothy E. Durant, Assistant District Attorneys, Clearfield and Richard A. Bell, District Attorney, Clearfield, submitted a brief for Commonwealth, appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. PER CURIAM: On December 14, 1973, in the late evening a red logging truck struck and damaged two houses in Clearfield County. The operator of the truck failed to stop. An immediate investigation by the State Police led them to suspect the appellant, as he had been seen behind the wheel of the truck shortly before and after the accident. Appellant was later convicted of failure to stop at the scene of an accident[1] and failure to reveal his identity at an accident.[2] He now brings this appeal alleging (1) that the court committed error in allowing the cross-examination of a defense witness concerning 150 the failure of the witness to submit to a polygraph examination and (2) the court erred in denying his application to suppress certain evidence at trial as products of an illegal search and seizure. A defense witness, Elaine Bailor, girl friend of the appellant testified that she drove the truck at the time of the accident. During the cross-examination of this witness, the prosecuting attorney pointed out that Mrs. Bailor was at the magistrate's hearing but did not testify. On redirect, defense counsel showed that the witness had gone to the district attorney prior to trial and told him the story. This was offered as rebuttal to the inference that the witness's story was a recent fabrication. The prosecutor, over defense counsel's objection questioned the witness on her failure to submit to a polygraph examination. In Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976), a criminal defendant was not permitted to introduce the results of a polygraph examination. The Supreme Court said, ". . . the results of a polygraph examination are inadmissible for any purpose" 467 Pa. at 141, 354 A.2d at 883. Based on this imperative language and no circumstances amounting to waiver or estoppel by the defense, there was prejudicial error in allowing the district attorney to question the witness on her failure to take a polygraph test when such results would have been inadmissible. The search appellant complains of occurred in the early morning hours of the day after the accident. Two state troopers went to the residence of the appellant and found the truck 15 to 25 feet from the highway on the appellant's property about 150 yards from appellant's house. The troopers examined the truck with a flashlight and found a damaged stake and some white paint marks on the truck body. After a more thorough search, a crab-apple was found lodged in the framework of the truck. The white paint was scraped from the truck and the stake was removed. No search warrant was obtained nor was the appellant arrested until after the search was conducted. The stake and the paint were introduced at trial. *151 The admission of these items into evidence was error. In Commonwealth v. Maione, 227 Pa.Super. 239, 324 A.2d 556 (1974); a warrantless search of an automobile was allowed because (1) probable cause arose in an unforeseen way shortly before the opportunity to search, and (2) the automobile was mobile so that the opportunity to search is fleeting. 227 Pa.Super. at 244, 324 A.2d at 559. In Maione, supra, the opportunity to search the auto arose shortly after the crime was committed, while the automobile was pulled off the highway at a local tavern. In the instant case, shortly after the accident, appellant was questioned concerning the accident at the "V.F.W." parking lot.[3] Appellant was not arrested and was allowed to go home. Appellant, alerted to a police investigation and possible charges against him, had ample opportunity to either destroy evidence or remove the truck from the jurisdiction before the police came to his home the next morning. Since the truck, at the time of the search was not so mobile that the opportunity to search was fleeting, the seizure of the items was illegal and the evidence should be suppressed.[4] See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Judgment of Sentence of the lower court is reversed and a new trial awarded. JACOBS, President Judge, and VAN der VOORT and SPAETH, JJ., concur in the result. WATKINS, former President Judge, did not participate in the consideration or decision of this case. NOTES [1] 75 P.S. § 1027(a). [2] 75 P.S. § 1027(b). [3] No search was made at this time. A search at this point would have more support under Maione than the one actually conducted in this case. [4] This is not saying that the police could not have examined the exterior of the truck without a warrant. Such an examination of the truck would not be an invasion of appellant's privacy, since the truck was parked close to the highway. Based upon this examination, the police could have obtained a proper search warrant and seized the items.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/233806/	211 F.2d 916 ATLANTIC REFINING CO.v.MOXLEY et al.MOXLEY et al.v.ATLANTIC REFINING CO. No. 14676. United States Court of Appeals Fifth Circuit. April 9, 1954. Sumter P. Cousin, Herold, Cousin & Herold, Shreveport, La., for appellants. J. N. Marcantel, Shreveport, La., Gerland P. Patten, Little Rock, Ark., Cornelius J. Bolin, Albert S. Lutz, Jr., Bolin & Bolin, Shreveport, La., for appellee. Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges. HUTCHESON, Chief Judge. 1 The suit was for the recovery of $270,854.54,1 with legal interest from March 1, 1941, arising out of the claimed breach by the defendant of a sublease of an oil, gas, and mineral lease on forty acres of land in Claiborne Parish, Louisiana. 2 The claim was that defendant, in violation of the reassignment provisions2 of the sublease, abandoned it while the same was producing oil or gas without first giving plaintiffs the required thirty days prior notice of said proposed abandonment, causing plaintiffs to lose the lease and thereby suffer the damages sued for. 3 The defendant, denying the violation charged against it, alleged that it produced the property, as a prudent operator should and as required of it, as long as the premises were productive of oil or gas in paying quantities, and that before it abandoned the property, it gave the plaintiffs the required prior thirty days notice of its intention and offered to reassign the lease, and plaintiffs refusing the offer of assignment, defendant thereafter abandoned the lease, as it had a right to do. 4 Motions for summary judgment, supported by many affidavits, were filed by plaintiffs and by defendant, and upon consideration by the court, in a written opinion,3 overruled. 5 The case then coming on to be tried to the jury and submitted to it on a lengthy charge, which included a form verdict,4 there was a verdict as follows: 6 A. ________ B. ________ C. $2000.00 D. $3000.00 7 Appealing from the judgment for five thousand dollars entered on the verdict, defendant is here insisting, for the reasons advanced and insisted on in its motion for summary judgment, that, as matter of law, the verdict and judgment may not stand. 8 It, therefore, urges upon us that the record fails to support plaintiffs' charges that it breached its contract, that, indeed, it affirmatively and beyond any controversy establishes that it did not do so, and that the judgment should be reversed and rendered in its favor. 9 The plaintiffs, on their part, urge upon us that, under the admitted and uncontradicted facts, they were entitled to a verdict as matter of law, and the judgment should be amended so as to allow them a recovery, for $52,240.00 as the cost of drilling and casing the two wells, and $91,004.91 balance due on the oil payment. In the alternative, they pray that "the cause be remanded to the lower court with proper instructions for a partial new trial in order to correct and amend the judgment so as to allow the two additional items herein claimed, there being no issues of fact to be decided." 10 This is not to say that plaintiffs, as appellants, do not assign procedural errors. As a matter of fact they specify forty-four. It is to say, though, that defendant-appellant is not claiming procedural errors or seeking a reversal because thereof, and that, while plaintiffs, as appellants, do assign many such errors, their real insistence is the same as defendant's, that there are no issues of fact to be determined but only issues of law. The defendant, in short, urges that, upon the undisputed facts the judgment should be reversed and here rendered in its favor, while the plaintiffs insist that it should be amended to afford them the additional recovery sought. 11 Because the contention of plaintiffs that, as matter of law, the defendant breached its contract, and that of defendant that, as matter of law, it did not,5 underlies the claim each puts forward for relief, and if defendant's contention is sustained by us, both appeals will be thereby disposed of, we address ourselves first to defendant's appeal. 12 Throughout these proceedings, in its answer, in its motion for summary judgment, on the trial, and here, the contention on which defendant rests its appeal has been consistently maintained. On pages 11, 12 and 13 of its brief, this contention is thus stated: "Defendant's contention is that the original lease held by the plaintiffs, which was for a term of five years and as long thereafter as oil or gas be produced in paying quantities, was for a fixed term, to-wit: For a primary term of five years and, if the lease produced, as long as it produced in paying quantities. Parten v. Webb, 197 La. 197, 1 So. 2d 76; Caldwell v. Alton Oil Co., 161 La. 139, 108 So. 314, 318; Brown v. Sugar Creek Syndicate, 195 La. 865, 197 So. 583, and cases there cited; Gas Ridge v. Suburban Agricultural Properties, 5 Cir., 150 F.2d 363; that the plaintiffs assigned said lease for its remaining term subject to the election of the defendant to abandon the lease while it was producing oil. Plaintiffs had the right to sublet the lease for a lesser term, which they did not do. 32 Am.Jur. 340 § 417; Robinson v. Ewert, 8 Cir., 291 F. 9, at page 12; Audubon Hotel Co. v. Braunnig, 120 La. 1089, 46 So. 33; Ascher v. Midstates Oil Corp., 222 La. 812, 64 So. 2d 182; Wier v. Glassell, 216 La. 828, 44 So.2d 882-885 and cases there cited. 13 "Consequently, the term of the sublease sued on here was fixed: Said sublease was to last as long as the property produced in paying quantities, subject to the election of the defendant above mentioned, otherwise it would have been invalid for want of a fixed term. Sam George Fur Co. v. Arkansas-Louisiana Pipeline Co., 177 La. 284, 148 So. 51. 14 "Under the uncontradicted evidence in the record the lease and the sublease both ceased when the production was so small that the property could not be produced in paying quantities — that is prior to March 1941; that as the owner of the sublease the defendant had the right to produce the property throughout its term; and if, in the exercise of that right, the lease terminated because it was no longer capable of producing in paying quantities, it was no fault of the defendant and the defendant breached no obligation owing to the plaintiffs. United Central Oil Corp. v. Helm, 5 Cir., 11 F.2d 760. 15 "Defendant's position is that in operating the property it acted throughout as a prudent operator under the circumstances. It produced the property until the wells dwindled to a barrel a day; that it was not required to produce or hold on to the property any longer because no prudent operator is required to operate at a loss; that it did not, during the life of the lease (and surely it was under no obligation to do anything after the lease expired), drill a deep well on the property because, under the conditions then prevailing, such an operation would not have been prudent. It did not then water-flood the property because under the conditions such an operation was likewise not feasible, nor would it have been practical nor profitable; that the defendant was only legally obligated to do what a prudent operator would have done under the same circumstances. Hart v. Standard Oil Co., 148 [146] La. 885, 84 So. 169; Doiron v. Calcasieu Oil Co., 172 La. 553, 134 So. 742; Coyle v. North American Oil Consolidated, 201 La. 99, 9 So.2d 473; Coastal Club, Inc. v. Shell Oil Co., Inc., D.C., 51 F.Supp. 819; Gerson v. Anderson-Pritchard [Prichard] Production Corp., 10 Cir., 149 F.2d 444; Cosden Oil Co. v. Scarborough, 5 Cir., 55 F.2d 634; Humble Oil & Refin. Co. v. Romero, 5 Cir., 194 F.2d 383. In deciding what a prudent operator should do at the time he is called upon to act things which came to light and new methods of operation developed subsequent thereto are not to be considered. Stanolind v. Sellers, 10 Cir., 174 F.2d 948, 949. 16 "In addition, plaintiffs, never having put the defendant in default as to the operations of the property, never having called upon defendant to drill a deep well nor to waterflood, cannot now complain and seek damages because of defendant's failure to do these alleged things. Pipes v. Payne, 156 La. 791, 101 So. 144; Hiller v. Humphreys Carbon Co., 165 La. 370, 115 So. 623; Temple v. Lindsay, 182 La. 22, 161 So. 8; Brown v. Sugar Creek Syndicate, 195 La. 865, 197 So. 583; Article 1912 Louisiana Civil Code." 17 Plaintiffs, in opposition to these views insist that the record contains ample evidence to support the finding of the jury that the defendant breached its contract in that, though it had agreed "to operate the premises at all times as a prudent operator would do under like circumstances", it failed to do so, and in that the critical clause of the sublease for giving notice before the lease was abandoned was violated by the acts of defendant in not giving notice until months after it had ceased to produce oil from the lease. 18 To plaintiffs' contention that it owed plaintiffs the duty, under the notice clause of the sublease, to afford them the opportunity of taking the lease back before it had lapsed for want of sufficient production, defendant opposes the plain and simple language of the clause which provides not that sublessees are obligated to surrender to plaintiffs as sublessors any part of the granted term, but only that, if sublessees elect "while the same is producing oil or gas", to abandon the lease, they will thirty days prior to such proposed abandonment give notice to the sublessors, and upon the terms fixed in the clause assign the lease back to them. 19 To plaintiffs' claim that other operators in the field did not elect to abandon their leases and therefore it must be found that defendant had not operated the lease as a prudent operator would do, defendant opposes the principles established in the jurisprudence by which the question of prudent operation vel non is determined and the undisputed evidence that for many months before defendant elected to abandon it the lease had not produced and, under the principles governing prudent operation, could not be made to produce in paying quantities. 20 On these points of difference between plaintiffs and defendant, we find ourselves in complete agreement with the defendant. The sublease did not impose, it was not intended by it to impose upon the sublessees any obligation to abandon the lease while the lease was still producing oil and gas. Sublessees were granted the right to hold the lease throughout its full life if they desired to do so. The notice clause was applicable only in the event they elected not to. The claim, therefore, it seems to us, implicit if not expressed in plaintiffs' position, that while the invoked clause authorized the defendant to abandon the lease, it obligated it, upon penalty of being held liable in damages, to make sure that the lease had not expired for nonproduction before it did so, is contrary to the clearly expressed intent and purpose of the invoked clause. This was that sublessees were entitled to develop and operate the lease for and during its full life, subject only to the obligation imposed upon them by the invoked clause that if, while the lease was producing oil or gas, they decided to abandon it, they must give sublessors thirty-days prior notice of their intention to do so. 21 We are of the clear opinion that the evidence shows, as defendant claims it does, that as matter of law at the time defendant determined to abandon the lease and give plaintiffs notice of its intention to do so, the lease had lapsed not because of any default on defendant's part but because of insufficient production, and that since it does so show, plaintiffs cannot complain that the defendant continued to hold on to the lease throughout its producing life instead of turning it back to plaintiffs before it had lapsed by its own terms. 22 This being so, the evidence will not support the verdict that the defendant had violated any obligation or that plaintiffs had suffered damages as a result thereof. If, however, we could agree with plaintiffs' view that the critical provision is plain and must be construed literally as meaning the production of any oil whatever rather than oil in paying quantities, we should nevertheless conclude that the defendant did not breach its obligation. This is so because it is undisputed that the defendant did not abandon the lease when it shut the well down but only elected to abandon it in October when, a full thirty days prior to its proposed abandonment it gave notice of its intention so to do by sending the letter notice. 23 It being undisputed that the defendant before abandoning the lease, gave the required thirty days notice of its intention to abandon, plaintiffs find themselves on the horns of a dilemma which prevents a jury finding that defendant breached the obligation fixed by the notice clause. For if, at the time the defendant gave notice, the lease had ceased to produce and was therefore not producing oil or gas as provided in the clause, the lease had expired by its terms and defendant had not in any manner breached its obligation to plaintiffs. If on the other hand, the lease was producing some oil, defendant did not breach its contract because it gave the thirty days notice required before abandoning the lease. 24 We are unable to determine from the record whether the jury accepted the plaintiffs' view, with which, as we have made plain, we do not agree, that the act of the defendant, on March 31, in ceasing to produce the well for oil because it was not being produced in paying quantities, was an abandonment of the well, and it was effected without giving the prior thirty days notice, or whether it was upon the theory that the evidence showed that defendant did not produce the well as a prudent operator should. But this is not material for, if on the first ground, the verdict would be contrary to settled law, and, if on the second ground, it would be without evidence to support it. 25 On defendant's appeal, the judgment is reversed and the cause is remanded with directions to enter judgment against the plaintiff and for the defendant. Notes: 1 This was itemized as follows: (1) The balance due on the oil payment reserved .... $ 91,014.54 (2) The cost of drilling and completing the two wells which the defendant drilled on the property, less the salvage value ................... 75,840.00 (3) The market value of a valid and subsisting lease without the wells ................... 4,000.00 (4) Future profits from sale sublease or operations of the lease ............ 100,000.00 2 "Should Assignees elect to abandon said lease while the same is producing oil or gas, Assignees shall, thirty (30) days prior to such proposed abandonment, give Assignors written notice thereof and Assignors shall have the right within said period to demand that Assignees assign said lease to Assignors upon Assignors paying to Assignees in cash the reasonable salvage value of the casing then in any wells which may have been drilled upon the lease, and upon receipt of such notice and payment, Assignees shall assign to Assignors said lease and the casing located in any wells situated on lease. The Notice provided for in this paragraph shall be given in the same manner as is provided above for the giving of notice by each party to the other." 3 Moxley v. Atlantic Refining Co., D.C., 99 F.Supp. 499 4 This instructed the jury to set forth the amount allowed as damages, if any, for: "(a) Amount allowed on oil payment claimed. * * " "(b) Amount allowed for cost of drilling and completing Patton `B-1' and Patton `B-2', less salvage value. * " "(c) Amount allowed as market value of a valid and subsisting lease on the property, and "(d) Amount allowed for future profits from the sale, sub-lease, or operation of lease. * " "Of course, if you find for the defendant, then there will be nothing in any one of those blanks, and the other verdict is put at the bottom of the sheet, `We, the jury find for the defendant.' * *" 5 In their reply brief, at page 2, plaintiffs-appellants, recognizing that this is so, state: "We have read and fully analyzed defendant's brief and find that there is only one issue presented therein, and that is whether there is any evidence in the record to support the verdict of the Jury that the defendant breached its contract. No other issue is raised by defendant's appeal."	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/233484/	210 F.2d 712 93 U.S.App.D.C. 183 CARRADO,v.UNITED STATES.MANFREDONIA,v.UNITED STATES.SMITH,v.UNITED STATES.WILLIAMS,v.UNITED STATES.ATKINS,v.UNITED STATES.JAMES,v.UNITED STATES.TURNER,v.UNITED STATES. Nos. 11685-11687, 11689, 11694-11696. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 27, 1953.Decided Dec. 10, 1953.Petition for Rehearing Denied March 3, 1954. [93 U.S.App.D.C. 185] Mr. Joseph J. Lyman, Washington, D.C., for appellants Carrado and manfredonia. Mr. T. Emmett McKenzie, Washington, D.C., for appellant Smith. Mr. DeLong Harris, Washington, D.C., with whom Mr. Cutis P. Mitchell, Washington, D.C., was on the brief, for appellant Williams. Mr. Albert J. Ahern, Jr., Washington, D.C., with whom Mr. James J. Laughlin, Washington, D.C., was on the brief, for appellants Atkins, James and Turner. Mr. William J. Peck, Asst. U.S. Atty., Washington, D.C., at time of argument, with whom Messrs. Leo A. Rover, U.S. Atty., Lewis A. Carroll and Samuel J. L'Hommedieu, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Mr. Charles M. Irelan, U.S. Atty., Washington, D.C., at time record was filed, entered an appearance for appellee. Mr. William R. Glendon, Asst. U.S. Atty., Washington, D.C., at time record was filed, also entered an appearance for appellee. Before EDGERTON, WILBUR K MILLER and FAHY, Circuit Judges. WILBUR K. MILLER, Circuit Judge. 1 In the first count of a six-count indictment, returned October 15, 1952, the grand jury charged that, beginning about March 17, 1949, and continuing to the date of the indictment, the seven persons who are appellants here and seven other persons1 conspired to traffic illegally in narcotic drugs; and that in furthering their conspiratorial objectives the defendants committed, among others, thirty-nine overt acts, which were briefly described. The next three counts accused the alleged conspirators of violating penal statutes concerning narcotics by selling to one John Henry Smith on February 6, 1952, seventeen one-grain capsules containing a mixture of heroin hydrochloride, quinine hydrochloride and milk sugar. Two more counts charged the alleged conspirators with substantive violations on February 27, 1952, based on the possession of one capsule containing a similar mixture. 2 When the case was called for trial in the United States District Court for the District of Columbia November 10, 1952, all of the indicted persons were present except Harry Tantillo, who had not been apprehended, and Letha Simpson, who was undergoing an operation that day. Paul Robinson pleaded guilty to the conspiracy[93 U.S.App.D.C. 186] count and the government agreed to dismiss the substantive counts as to him at the time of sentence. The trial of the remaining eleven defendants- including, of course, the seven appellants- then began. Shortly afterward, on the government's motion, Esther Wright was discharged under Sec. 23-110, D.C. Code 1951, and later became a witness for the United States. The trial proceeded with the remaining ten defendants until, at the close of its evidence, the government dismissed as to Pearl Woodward, leaving nine on trial. The jury acquitted Sam Palmer and Warren Williams, but found the remaining seven defendants guilty under all six counts. Dissatisfied with that result, they appeal. 3 As to the conspiracy, the prosecution presented testimony tending to show the conspirators organized and operated a narcotics syndicate headed by Harry Tantillo, of New York, which regularly transported contraband drugs from its New York member-wholesalers to the member-distributors- chief of whom was Randolph Turner- in the District of Columbia, who in turn supplied the illicit material to other members of the syndicate, who were retail salesmen. This testimony was furnished by two of the indicted fourteen and by two other witnesses, all of whom said they had been members of the syndicate and had been participants in its activities. They described the operation of the organization in considerable detail, and told of overt acts committed in furtherance of the conspiracy, including many of these charged in the first count of the indictment. 4 As to the sale of seventeen capsules to John Henry Smith, the basis of the first three substantive counts of the indictment, two police officers testified that on February 6, 1952, they took John Henry Smith, a known drug addict who had turned informer, to the vicinity of the home of the appellant Joseph Smith. Having first searched John Henry and removed all property from his person, the officers gave him $20,00 and sent him into Joseph's house. When he returned thirty minutes later, a search revealed he had seventeen capsules containing a white powder, and three one-dollar bills. A chemist later identified the powder as the mixture containing heroin. 5 Before calling John Henry Smith as a witness, government counsel informed the court he had been told by Smith's attorney that, for fear of self-incrimination, his client would refuse to testify concerning the incident just noted. This produced a legal argument before the court by John Henry's attorney and counsel for the prosecution, in which the latter insisted that John Henry could not incriminate himself by testifying to a purchase of narcotics made at the instance of the government, as criminal intent would be lacking. The trial judge said: 6 '* * * I see no rational basis for his claim that the questions propounded might incriminate him, in as much as there could be no criminal intent involved in answers to those questions. Therefore, he will be required to answer.' 7 After this statement the jury was brought in and John Henry's attorney, after consultation with his client, said, 'He is prepared to answer, if you want to propound the questions again.' 8 John Henry Smith then testified that he was taken to Joseph Smith's house, as the officer had said, and there bought seventeen capsules of the heroin mixture, not from Joseph Smith, but from a boy whom he did not know who told him 'Peter Rabbit' (Joseph Smith) was not at home. When this occurred government counsel submitted two writings to the witness and asked if he could identify the signatures thereon. He said he could not. Government counsel then announced surprise and was thereafter permitted, over appellants' objection, to propound leading questions to the witness. He continued to say he could not identify the signatures and that he did not buy the seventeen capsules from Joseph Smith himself. 9 The two writings were receipts which were later identified by Detective Sgt. [93 U.S.App.D.C. 187] Joseph A. Gabrys and received in evidence. Both were dated February 6, 1952. One receipt was for $3.00 'for information furnished to the Narcotic Squad.' The other acknowledged receipt from Gabrys of the sum of $17.00 for 'purchase of seventeen capsules of heroin from Joseph Smith * * * at 1323 West Virginia Avenue, Northeast, by John Henry Smith on above date.' Gabrys testified that John Henry Smith signed the two receipts in his presence. 10 In addition to the foregoing concerning the alleged sale of the seventeen capsules by Joseph Smith, Esther Wright testified that in her presence, when it was suggested to Joseph Smith that John Henry Smith was 'wrong' (that is, had turned informer), Joseph said, 'Well, I certainly sold him seventeen capsules.' 11 As to the possession of one capsule of the mixture containing heroin, there was evidence that on February 27, 1952, five police officers, including Lt. Carper, a deputy U.S. marshal and a federal narcotics agent went to the house of Joseph Smith. The deputy marshal had a warrant of arrest for Joseph Smith and the narcotics agent had a search warrant for the premises. Two of the policemen knocked at the front door and represented themselves as vacuum cleaner salesmen. The defendant Warren Williams opened the door slightly, whereupon the officers entered, stating their identity, and saying they 'had a warrant for the place'; and the other officers, who had waited close by, entered practically at the same time. Joseph Smith, Warren Williams, Esther Wright and Pearl Woodward were in the house. One of the police officers pursued Joseph Smith into the bathroom on the second floor and observed him standing before a flushing toilet bowl in which a number of capsules were swirling. The officer removed one of the capsules, which contained a white powder later identified as the heroin mixture. This capsule became the basis of the last two substantive counts of the indictment. Further search of the premises revealed various paraphernalia used by drug addicts, and other indicia of narcotics. 12 Appellants attack the first count of the indictment for duplicity, because it charged them with conspiring to violate three different penal statutes. They seek to avoid the effect of the Braverman case, in which the Supreme Court said a conspiracy is a single crime no matter how diverse its objects,2 by saying count one does not allege a single conspiracy in violation of 18 U.S.C. § 371, and does not allege 'that the various other crimes charged, or the various conspiracies to violate other statues, were all a part of the single conspiracy.' 13 We observe, however, this language in the first count: 14 'During the period from on or about March 17, 1949, continuously to the date of the finding of this indictment * * * the defendants * * * conspired * * * to commit offenses against the United States * * * .' (Emphasis added.) 15 This sufficiently alleges, we think, the formation of a single continuing conspiracy[93 U.S.App.D.C. 188] to commit plural crimes. Consequently, under the Braverman decision, the first count of the indictment is not duplicitous. 16 The five substantive counts of the indictment are attacked on the theory that there was no evidence before the grand jury as to an essential element of the crimes charged. The theory is based primarily on the fact that the Treasury Department chemist who analyzed the contents of the capsules upon which the substantive counts were based and testified for the prosecution that the capsules contained a mixture of heroin and other substances, said on cross-examination he had not appeared before any grad jury with respect to that analysis. Concluding from this that the grand jury had no evidence before it that the capsules contained narcotics, the appellants proceeded to ask other government witnesses if they had appeared before the grand jury, but objections to such questions were sutsained. They sought and were denied production of the records showing who had testified before the grand jury with respect to this case. They noted that an earlier indictment against these appellants and their co-defendants in almost identical language with the present one had been found by an earlier grand jury and was pending when the present true bill was returned. From this they deduce that the grant jury may have adopted by reference testimony which its predecessor had heard and which it did not hear, and used such evidence as the basis for the indictment here. 17 These surmises of the appellants fall when they encounter legal principles. There is a strong presumption that a grand jury has faithfully done its duty according to the oath administered to its members. Moreover, guilt need not be demonstrated to a grand jury beyond a reasonable doubt and expert evidence as to contents of the capsules is not the only proof upon which the grand jury could have relied in accusing the defendants of trafficking in narcotics. A motion to quash an indictment for the absence or incompetency of evidence before the grand jury is addressed to the discretion of the trial court and its action thereon will not be reversed except upon a showing of abuse of discretion. Stewart v. United States, 8 Cir., 1924, 300 F. 769. It is also true that an appellant who attacks an indictment returned in due form on the ground that it was returned without sufficient evidence, has the burden of clearly showing the absence of such evidence. No such showing was made here. 18 In United States v. American Medical Ass'n, D.C.D.C. 1939, 26 F. Supp. 429, at pages 430-431, our late colleague, Judge James M. Proctor, then a district judge, wrote succinctly as follows: 19 '* * (T)here is no question of a court's power to go back of an indictment to inquire whether vitiating irregularities induced the finding. United States v. Gouled, supra (D.C., 253 F.242); Laska v. United States, 10 Cir., 82 F.2d 672; United States v. Oley, D.C., 21 F. Supp. 281. That is conceded by government counsel. But it is a power sparingly used; justified only where by proper verified pleading a clear and positive showing is made of gross and prejudicial irregularity influencing the grand jury in returning an indictment. Averments on information and belief have been uniformly held not enough.' 20 Judge Parker, speaking for the Fourth Circuit in Allen v. United States, 1937, 89 F.2d 954, 956, considered Allen's contention that the trial court erred in refusing 21 * * to permit appellant's counsel to cross examine witnesses for the purpose of showing that they were not examined before the grand jury, so as to lay a foundation for a motion to quash the bill of indictment on the ground that the grand jury acted upon insufficient evidence.' 22 [93 U.S.App.D.C. 189] He said: 23 '* * * The indictment was clearly insufficient and the judge very properly refused to permit counsel for appellant, on the trial of the case, to enter upon an inquiry as to what evidence was heard before the grand jury. The propositions of law involved are so elementary as not to justify discussion.' 24 To the same effect is Kraus v. United States, 8 Cir., 1937, 87 F.2d 656. 25 We cannot say the trial judge in this case abused his discretion in acting as he did concerning appellants' efforts to obtain proof that the grand jury did not have before it sufficient competent evidence to justify the indictment. 26 In addition to their attacks on the indictment, which we have just discussed, the appellants have advanced many other reasons for reversal which they have forcefully and earnestly supported in four voluminous briefs and on oral argument. We shall consider each point presented. 27 1. Appellants say the trial judge erred in granting the government's motion to discharge Esther Wright as a defendant so she might be a witness for the United States, under Sec. 23-110, D.C. Code 1951,3 because this occurred after Paul Robinson, first witness for the government, had testified. Is is argued that Esther had 'gone into her defense' and therefore the judge could not grant the motion as the Code provision says he may do 'before a defendant has gone into his defense'. This was damaging to them, the appellants urge, because the discharged defendant had the advantage of hearing Robinson's lengthy story of the conspiracy before she took the stand, and her attorney had participated in the conferences of their counsel. 28 But until she was discharged Esther Wright was a party defendant and was required to be in the courtroom. Rule 43, Federal Rules of Criminal Procedure, 18 U.S.C. Regardless of any speculative prejudice to the appellants because of her presence, the question simply is whether the trial judge erred in granting the motion to discharge her. We do not think he did. 29 The Code section is not the source of the trial judge's authority to dismiss a defendant so he may be a witness against his former co-defendants, but is an immunity statute enacted for the benefit and protection of a defendant who is discharged for that purpose before he has been in jeopardy. The Code provision is not aptly worded, but we think Congress intended the words 'before a defendant has gone into his defense' to mean before he has been put in jeopardy. When and in what circumstances jeopardy attaches is not always easy to determine. That a jury has been sworn to try the issues- a basic test of jeopardy- is not invariably determinative. That being true, it seems to us that the statute's draftsman intended it to provide immunity from a second prosecution for a defendant who would not otherwise be entitled to it because he had not been in jeopardy. 30 In this connection the parties differ as to whether Esther Wright had actually 'gone into' her defense before she was discharged. We have already pointed out, however, that the court's authority to discharge her did not spring from the statute, and so the question whether she 'had gone into her defense' is not here. That question will not arise unless and until she claims immunity, under the Code section, from some future prosecution for the same offenses charged against her in the indictment from which she was discharged. 31 [93 U.S.App.D.C. 190] 2. Each of the five substantive counts accused all fourteen defendants of personally committing the violation therein described, and also charged them with committing it as co-conspirators. Pursuant to a defense motion before trial, the court ordered the government to file a bill of particulars 32 '* * * stating which of the defendants in the above-entitled cause are charged as principals and which of the defendants are charged as aiders and abettors to the principal charged in Counts 2, 3, 4, 5 and 6 of the indictment * * .' 33 The bill of particulars filed in response to the order stated that the defendant Smith personally committed the violations charged in the last five counts and, as to each violation, added: 34 'The other defendants the government will show, aided and abetted the defendant Smith in committing this violation and likewise were guilty of advising and conspiring with him to commit it.' 35 At the conclusion of the evidence and at the court's suggestion, the government abandoned the 'aiding and abetting' theory, that is to say, it abandoned the charge that all the defendants had personally committed the violations described in the last five counts, either as active principals or as aiders and abettors. This was done because the evidence tended to show Smith alone had committed those violations and did not show the others had aided and abetted him. The questions then remaining for the jury to consider, under the five substantive counts, were whether Smith had personally committed the violations and whether the others were guilty of them as co-conspirators. As to the others, the question was whether Smith had done the affirmative acts pursuant to and in furtherance of the conspiracy; if so, then his co-conspirators were guilty under the substantive counts. Pinkerton v. United States, 1946, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489. Accordingly, the court did not submit to the jury the question whether the defendants other than Smith were guilty as 'aiders and abettors,' but instructed only on the question whether they were guilty with him as co-conspirators. 36 The appellants rely heavily on the fact that when a draft of the order directing the government to file a bill of particulars was submitted to the trial judge, it contained in the portion above quoted the word 'co-conspirators' as well as 'aiders and abettors,' and the court struck from the draft the word 'co-conspirators.' It is said this amounted to an election by the government to abandon the co-conspirator theory under the substantive counts and to rely upon the charge that Smith was the active principal and the others were aiders and abettors in the commission of those violations. Consequently, the appellants reason that the co-conspirator theory should not have been submitted to the jury; and, as there was no evidence to sustain the aiding and abetting theory, that the defendants other than Smith were entitled to be acquitted under the five substantive counts. 37 The flaw in their argument is that the order directing the government to file a bill of particulars did not constitute an election by the United States Attorney as to which theory he would pursue. The bill of particulars pointed out, as we have shown, not only that the government hoped to show the other defendants had aided and abetted Smith, but also that they were guilty of the substantive charges as co-conspirators with him. This was not only responsive to the order but was also affirmation of the same dual charge contained in all five substantive counts. Moreover, we observe that neither the court nor the appellants objected to the inclusion of the co-conspirator theory in the bill of particulars. It follows there was no election by the government to abandon the co-conspirator charge and the court did not err in submitting that theory to the jury. 38 3. Appellants allege error in the court's quashing of the subpoenas duces [93 U.S.App.D.C. 191] tecum served upon the United States Attorney which called for the production of written statements from witnesses the government intended to use at the trial. The first of these subpoenas, served October 30, 1952, demanded the production of the written statements of five persons named therein, none of whom was called as a witness at the subsequent trial. The second subpoena was served on the United States Attorney on the first day of the trial. It again demanded the production of the written statements of four of the five persons first named, and of four additional persons. Of the nine persons whose statements were thus sought by appellants, only two- Herbert Johnson and Nellie Leach- testified at the trial. Both said, and were confirmed by government counsel, that they had never given a written statement to the prosecution. It is, therefore, obvious that quashing these two subpoenas worked no hardship on the appellants since they concede they were entitled only to statements of persons who later became witnesses. 39 Also on the first day of the trial, the appellant Joseph Smith demanded by subpoena duces tecum the written statement of Esther Wright. The subpoena was quashed but, during the course of the trial, the appellants were furnished with two pretrial statements signed by Esther Wright and with a transcript of a statement dictated by her to a stenographer, which was typed after her departure and so was not signed. Appellants had these documents overnight and were afforded an opportunity to cross-examine Esther Wright concerning them. This makes it clear they were not prejudiced by the quashing of Smith's subpoena, which after all was not served in advance of trial. 40 In this connection appellants complain because written statements of the witness Robinson were not submitted to them in advance of trial. They were given the statements during the trial and were afforded a recess in which to examine them in order to prepare for cross-examination concerning them. We think this was sufficient. 41 4. It is argued that the trial judge committed reversible error in permitting the government to announce surprise when its witness John Henry Smith refused to state Joseph Smith was the seller of the seventeen capsules and refused to identify his own signature to the two receipts held by Officer Gabrys, one of which acknowledged receipt of $17.00 for 'purchase of seventeen capsules of heroin from Joseph Smith * .' 42 We find no error in the court's action, for, by Sec. 14-104 of the D.C. Code 1951, the trial judge may in his discretion allow the party who has been taken by surprise by the testimony of his own witness to prove, only for the purpose of affecting the credibility of the witness,4 that the witness has made statements substantially variant from his sworn testimony about material facts. We said in Wheeler v. United States, 1953, 93 U.S. App. D.C.- , at page- , 311 F.2d 19, at page 25, ' * * (T)he trial court's ruling on 'surprise' may not be disturbed unless it plainly appears that the ruling is without any rational basis.' That is [93 U.S.App.D.C. 192] not so here, for we think the United States Attorney had the right to believe that, when the fear of self-incrimination was eliminated, the witness would testify in accordance with the receipt which he had given theretofore, and had the right to announce surprise when he refused to do so. Cf. United States v. Graham, 2 Cir., 1939, 102 F.2d 436, certiorari denied 307 U.S. 643, 59 S. Ct. 1041, 83 L.Ed 1524. 43 5. The appellants contend the court erred in denying their motion for a mental examination of the witness Robinson. The request for such an examination was made before Robinson began his testimony and was based solely on the statement of one of the attorneys for appellant Williams that he had interviewed Robinson and believed that he 'is possibly non compos.' He therefore moved that a mental examination be ordered or, in the alternative, that the defendants be permitted to have psychiatrists present in the courtroom to observe Robinson during his testimony. The court refused to order an examination but granted the request to have psychiatrists present as observers, and extended the same privilege to the prosecution. The government availed itself of this permission, but the defendants did not, and did not call as witnesses the psychiatrists whom the government had in attendance during Robinson's testimony. This failure was doubtless due to the fact that Robinson testified for more than two days and showed no indication of mental weakness, although he did admit that for a period of one year, which ended some eight months before the trial, he had been addicted to the use of heroin and that on one occasion while he was confined in the District Jail he had attempted to hang himself. Whether to order a mental examination of the witness was a matter within the discretion of the district judge. We do not think that discretion was abused. 44 6. The appellants complain that the paraphernalia for use in connection with narcotic drugs, which was taken from the person of Warren Williams in the raid of February 27, was illegally seized and should not have been received in evidence. Their theory is that this is so because the raiding officers had no warrant for the arrest of Williams. But when the officers entered the premises and observed the situation, they had ample cause to arrest and search all persons present, including Warren Williams. Relevant evidence obtained through the search of his person was not rendered inadmissible as to the other defendants by the fact that the jury later found Warren Williams not guilty. Wyche v. United States, 1951, 90 U.S. App. D.C. 67, 193 F.2d 703, certiorari denied 342 U.S. 943, 72 S. Ct. 556, 96 .Ed. 702, rehearing denied 1952, 343 U.S. 921, 72 S. Ct. 675, 96 L. Ed. 1334. 45 7. As another reason for reversal, appellants say the court erred in denying their motion for acquittal when it appeared that the government's evidence identifying as heroin the contents of the capsules was in hopeless conflict. The supposed conflict is based on the fact that Paul Robinson and Esther Wright, witnesses for the government, said heroin has a strong odor, while the chemist from the Treasury Department who analyzed the powder in the capsules testified that heroin has no odor. From this apparent conflict appellants reason that the government failed to prove the capsules contained heroin. The chemist said, however, that both quinine and heroin are very bitter substances and, if taken through the nostrils, they can be tasted and the taste is easily mistaken for an odor. There was, therefore, no real conflict in the statement of the government's witnesses concerning the contents of the capsules. 46 8. Appellants contend further that the trial judge committed reversible error in assisting the prosecuting attorney by making suggestions to him and by eliciting from a witness information which the prosecutor had failed to seek. Specifically the complaint is leveled at the following incidents: 47 (a) The court's questioning of Robinson developed the fact that he [93 U.S.App.D.C. 193] gave no written order for certain packages of heroin delivered to him in New York by Tantillo, and that the packages bore no stamps. These essentials of proof had not been brought out by the prosecutor when the judge asked the questions. 48 (b) When Robinson was testifying, the prosecuting attorney asked him to detail a certain conversation. Objection was interposed which, after argument, was overruled. The the government attorney began a different line of questioning and the judge reminded him he had not renewed his request that a conversation be detailed. 49 (c) In discussing an instruction offered by the government, the judge said there was no evidence that the other defendants had aided and abetted Joseph Smith in committing the violations set out in the substantive counts and that he proposed to instruct the jury it could find them guilty under the substantive counts only as conspirators, under the Pinkerton doctrine. Government counsel then announced abandonment of the aiding and abetting theory. 50 A trial judge should not indicate bias against a defendant, nor personal conviction of guilt. But it is well settled that he is more than a mere umpire, and is properly interested in seeing that all salient facts are presented to the jury. We see nothing improper in the court's conduct described in paragraphs (a) and (b) above. 51 The incident related in paragraph (c) above was simply the judge's indication of how he intended to instruct the jury. The prosecution's abandonment of its aiding and abetting theory was gratuitous and immaterial. It was the judge's duty to instruct the jury correctly, regardless of what theory any party might urge upon him in offering instructions. Had the court submitted the aiding and abetting theory, it might well have been reversible error. 52 9. After retiring to consider of its verdict, the jury sent a note to the judge asking for a copy of his charge. Thereupon the jury was brought back to the courtroom and the judge explained that the charge had not yet been transcribed and said, 'If there is any particular point which you wish read back, I can have the reporter find that point in her transcript and read it to you.' The foreman replied, 'You Honor, it wasn't any particular point. We thought if we had the whole thing with us we could refer to them as we went along.' Later a transcript of the judge's charge was sent to the jury room, over the objection of counsel for all of the defendants except Allen Williams, who said, 'I think it is a good thing.' Furnishing a copy of the charge to the jury is assigned as error. 53 In Copeland v. United States, 1945, 80 U.S. App. D.C. 308, 309, 152 F.2d 769, 770, certiorari denied 328 U.S. 841, 66 S. Ct. 1010, 90 L. Ed. 1815, this court said: 54 '* * (W)e think it is frequently desirable that instructions which have been reduced to writing be not only read to the jury but also handed over to the jury. This course is required in some states, and is widely practiced. United States courts are free to follow it. We see no good reason why the members of a jury should always be required to debate and rely upon their several recollections of what a judge said when proof of what he said is readily available.' 55 We adhere to that statement. 56 10. The appellant Allen Williams, who was convicted as a conspirator, insists the evidence as to him showed no more than that on many occasions he had purchased narcotic drugs from many persons, including several of those accused in the indictment. He says it was not shown that he was any more than a mere customer or user of narcotics. Instructions embodying his theory, which he offered were given by the court as follows: 57 [93 U.S.App.D.C. 194] 'You are instructed that if you find * * that the defendant Allan (sic) Williams had no personal knowledge of the conspiracy herein alleged, he is not a conspirator and is therefore not guilty * * * on all counts of the indictment. 58 'You are instructed that if you find that the defendant Allen Williams did not participate in the scheme or plan alleged and had only knowledge of the illegal acts of others, you must find him not guilty on all counts of the indictment. 59 'You are instructed that if you find as a fact that defendant Allan Williams was a mere purchaser of narcotic drugs from other defendants in this cause and did not participate in the conspiracy alleged, your verdict as to defendant Allan Williams must be not guilty as to all counts of the indictment herein.' 60 With Allen Williams' theory that he was a mere purchaser of narcotic drugs thus emphasized in the charge, the jury nevertheless found him guilty as a conspirator. It did not do so without evidence, for Esther Wright testified that she was present at a meeting at Randolph Turner's house in June, 1951, where she saw Allen Williams, Leon James, Randolph Turner and Letha Simpson. Among the subjects discussed was that of the retail price of heroin, for Joseph Smith said he thought he would raise the price from $1,25 to $1.50 per capsule, and Allen Williams remarked that he knew somebody who was getting $2.00. Esther further said that Allen Williams came to the home of Joseph Smith many times between June and September, 1951, and obtained capsules of heroin, which she or some of the others delivered to him. Paul Robinson testified that during a period of seven months he regularly delivered heroin to Allen Williams in quantities averaging five ounces per week, quantities which approximate those delivered to other retail salesmen. This evidence was enough to justify the jury in concluding he was a member of the conspiracy. 61 As we have indicated, we find nothing in the record, after a painstaking search, to warrant us in disturbing the jury's verdict. The case was carefully tried and the judge extended to the appellants every protection to which they were entitled. The judgments, therefore, must stand. 62 Affirmed. 1 Harry Tantillo, Paul Robinson, Sam Palmer, Warren Williams, Esther Wright, Pearl Woodward and Letha Simpson 2 Braverman v. United States, 1942, 317 U.S. 49, at page 54, 63 S. Ct. 99, at page 102, 87 L. Ed. 23. The Supreme Court said: 'The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for 'The conspiracy is the crime and that is one, however diverse its objects.' (Cases cited.) A conspiracy is not the commission of the crime which it contemplates, and neither violates nor 'arises under' the statute whose violation is its object (Cases cited.) Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. (Cases cited.) The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute, Sec. 37 of the Criminal Code. For such a violation only the single penalty prescribed by the statute can be imposed.' In the present case each appellant received only one sentence under count one of the indictment. 3 The pertinent portion of Sec. 23-110 is as follows: 'When two or more persons are jointly indicted the court may, before a defendant has gone into his defense, direct any such defendant to be discharged, that he may be a witness for the United States. * * * (S)uch order of discharge * * * equally with the verdict of acquittal, shall be a bar to another prosecution for the same offense.' 4 The trial judge so charged the jury when he said: 'You will recall that the Government called John Henry Smith and, after he was called, the District Attorney announced surprise after he had given certain testimony; in other words, that the Government expected John Henry Smith to testify differently. In substantiation of this announcement the District Attorney produced statements made by John Henry Smith, which have been received in evidence and read to you. Now, such statements cannot be considered by you as evidence of the guilt of the defendants or any of them. They are admissible solely in order to permit the Government to show that, in offering the witness John Henry Smith, Government counsel had reason to believe that he would testify differently, and therefore to impeach the witness so the Government would not be bound by his testimony. It is not evidence of the facts stated in the paper, but is received only for the purpose of affecting the credibility of the witness John Henry Smith.'	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1644693/	4 So. 3d 591 (2007) AVEN COTTON v. STATE. No. CR-06-0206. Court of Criminal Appeals of Alabama. January 17, 2007. Decision of the alabama court of criminal appeals without opinion. Dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2857633/	flinn IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN ON MOTION FOR REHEARING NO. 3-91-314-CV JAMES NEILL WILKERSON, APPELLANT vs. ROBERT F. FLINN AND WIFE CHARLOTTE FLINN, APPELLEES FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 90-319-C368, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING We withdraw our previous opinion, dated April 1, 1992, and substitute the following opinion. James Neill Wilkerson appeals from a summary judgment granted on the motion of Robert and Charlotte Flinn. Wilkerson contends the trial court erred (1) by rendering summary judgment on pleadings Wilkerson had not received before the summary-judgment hearing, and (2) by allowing the Flinns to amend their pleadings less than three days before the hearing. We will affirm the judgment. CHRONOLOGY OF THE CONTROVERSY December 30, 1985 -- Wilkerson executed and delivered his promissory note payable to the Flinns. August 7, 1990 -- The Flinns sued Wilkerson to recover the amount due on the promissory note. The Flinns prayed for recovery of the principal amount of the note, along with interest, attorney's fees and costs. Wilkerson's answer is not included in the appellate record, but he apparently filed a timely general denial. December 12, 1990 -- The Flinns moved for summary judgment, based on the pleadings, affidavits by Charlotte Flinn and the Flinns' attorney, and admissions by Wilkerson. A hearing on the motion was set for March 20, 1991. March 13, 1991 -- Wilkerson responded to the motion for summary judgment for the first time by filing "Defendant's First Amended [Original] Answer and Counterclaim." In that pleading he generally denied the Flinns' allegations and set forth a counterclaim alleging the Flinns had fraudulently induced him to enter into the real-estate transaction which gave rise to the promissory note. In his "Response to Motion for Summary Judgment," apparently filed also on March 13, Wilkerson disputed certain portions of the affidavits of Charlotte Flinn and the Flinns' attorney. March 14, 1991 -- The Flinns responded to Wilkerson's pleadings by preparing (1) a motion for leave to file an amended original petition and a supplemental petition, and (2) a motion for leave to file a first amended motion for summary judgment with additional affidavits. They mailed to Wilkerson the first motion on March 14 and the second on March 15, including the appropriate amended and supplemental pleadings with each motion. March 18, 1991 -- The Flinns filed the two motions they had prepared on March 14 and included the pertinent pleadings with each of the motions. Wilkerson acknowledges receiving on March 18 the amended motion for summary judgment, which the Flinns mailed on March 15, but he claims he did not receive the motion and amended and supplemental petitions mailed on March 14 until two hours after the March 20 hearing. (1) March 20, 1991 -- Before the scheduled 9:00 a.m. hearing, Wilkerson filed his motion for leave to file a response to the Flinns' motion for summary judgment and personally delivered the motion to the Flinns' attorney. Wilkerson alleged in his motion that the Flinns' amended motion for summary judgment surprised him and prayed that the court deny the Flinns' motion for leave to file the amended motion for summary judgment. Although we cannot determine whether the court considered Wilkerson's motion during the hearing, the court did sign Wilkerson's order in the afternoon of March 20. The order, which Wilkerson supplied to the court, did not deny the Flinns leave to file their amended pleadings; it merely granted Wilkerson leave to file his response to the motion for summary judgment and his amended answer and counterclaim. The March 20 hearing occurred as scheduled. Although the hearing was not transcribed, the docket sheet reflects the trial court announced that it granted part of the Flinns' motion for summary judgment at the hearing. March 23, 1991 -- In a letter to the trial judge, Wilkerson stated he did not receive the amended and supplemental pleadings until after the hearing and did not have the benefit of seeing those pleadings before or during the hearing. Wilkerson suggested the trial court not sign the Flinns' proposed order, but he did not file a motion asking the court to reconsider its oral ruling recorded on the docket sheet. April 1, 1991 -- The trial court granted the Flinns' March 18 motions and ordered the court clerk to file the amended original petition and supplemental petition, as well as the amended motion for summary judgment. The trial court also awarded the Flinns partial summary judgment on their claim and ordered that Wilkerson take nothing by his counterclaim. The court found that a material issue of fact existed as to the amount of attorney's fees which the Flinns were entitled to recover, and set that part of the controversy for trial on May 14. May 28, 1991 -- After a trial on the attorney's fees issue, the trial court rendered final judgment for the Flinns, granting them recovery of the principal amount of the note, interest, and attorney's fees. Wilkerson appeals from this judgment. LATE RECEIPT OF PLEADINGS In his first point of error, Wilkerson complains the trial court erred in granting the partial summary judgment and the final judgment after being made aware that Wilkerson had not received the pleadings upon which the court granted summary judgment before the hearing. Wilkerson contends he brought the lack of notice to the attention of the court in letters written after the March 20 hearing, but the trial court erroneously signed the final judgment anyway. (2) The trial court was not bound to assume the truth of Wilkerson's assertion that he did not receive the amended and supplemental pleadings until after the March 20 hearing. (3) We believe Wilkerson had to file a motion for new trial to preserve error; and to prevail thereon, Wilkerson would have had to present evidence to establish the delayed receipt of the amended and supplemental pleadings. See HCFCO, Inc. v. White, 750 S.W.2d 23, 24 (Tex. App.--Waco 1988, no writ) (the question of lack of service is a question of fact). A motion for new trial is a prerequisite to appeal a complaint on which evidence must be heard. Tex. R. Civ. P. 324(b); cf. Lee v. Braeburn Valley West Civic Ass'n, 786 S.W.2d 262, 263 (Tex. 1990) (a motion for new trial is necessary when a party wishes to explain his absence from a summary-judgment hearing). A party who receives inadequate notice of a summary-judgment hearing must file a motion for new trial in order to complain on appeal. See French v. Brown, 424 S.W.2d 893, 894 (Tex. 1967). In French, the plaintiff filed a motion for summary judgment and mailed a copy of the pleading to the defendant. The defendant never received the motion, and learned of the proceeding only after the trial court granted the summary judgment. The defendant filed a motion for new trial that was overruled by operation of law. The defendant did not appeal, but later attacked the judgment by bill of review, asserting the trial court lacked jurisdiction to render summary judgment because the defendant had no notice of the summary-judgment hearing. The supreme court disagreed, stating that the failure to provide service of the motion for summary judgment did not deprive the trial court of jurisdiction: "[A]t the most, such rendered the summary judgment erroneous, corrective either by the trial court in response to [Defendant's] timely filed motion for new trial, or, upon its overruling, by the appellate courts on appeal." Id. (emphasis added); see also Edwards v. State Bank of Satanta, Kan., 705 S.W.2d 839, 843 (Tex. App.--Amarillo 1986, no writ) (stating that failure to give notice of a summary-judgment hearing does not vitiate a summary judgment but is a procedural anomaly for the trial court to correct in response to a motion for new trial); Ex parte Bowers, 671 S.W.2d 931, 936 (Tex. App.--Amarillo 1984, no writ) (stating that an erroneous summary-judgment order may be voidable, but is not void, if the trial court had jurisdiction of the subject matter and the parties). Unlike the nonmovants in French and Edwards, Wilkerson had notice of the summary-judgment hearing, and before the hearing he received a copy of the amended motion for summary judgment. Moreover, he appeared and argued that the summary judgment should be denied. He complains only that he had not seen the pleadings on which the trial court rendered summary judgment. (4) We believe, however, that if a motion for new trial is a prerequisite to appealing when the nonmovant did not receive notice of the hearing, it is also required when the nonmovant claims he did not have notice of the pleadings on which the summary judgment was granted. See Delta (Del.) Petroleum & Energy Corp. v. Houston Fishing Tools Co., 670 S.W.2d 295, 296 (Tex. App.--Houston [1st Dist.] 1983, no writ) (holding that a party complaining of less than twenty-one days' notice of a summary-judgment hearing waived the error by failing to file a post-trial motion to have the judgment set aside). In his motion for rehearing, Wilkerson relies on Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990), and Lee v. Braeburn Valley West Civic Ass'n, 786 S.W.2d 262 (Tex. 1990), to support his contention that his failure to file a motion for new trial did not waive error. In Wilson, the trial court rendered a default judgment against a defendant who admitted receipt, but not service, of the pleadings. The Texas Supreme Court found the default judgment to be erroneous because service had not been made in strict compliance with the law. Id. at 837. The court, in response to the movant's argument that the notice given comported with the standard set forth in the Restatement (Second) of Judgments, (5) noted the Restatement specifically sets forth a default-judgment exception. Id. A comment to section 3 of the Restatement points out that a default judgment is "awarded not because the court is entirely satisfied that the claim had substantive merit . . . but because the party in default was derelict in complying with the rules of procedure . . . ." Restatement (Second) of Judgments § 3 cmt. d (1982). The Restatement goes on to state that if the party originally in non-conformity with the rules can show that the person commencing the action is guilty of comparable non-conformity, "under a principle of equality the derelictions offset each other." Id. The court's specific holding in Wilson, which we read narrowly, was that a default judgment was erroneous against a defendant not served in strict compliance with the law. The posture of the case before us is a summary judgment where Wilkerson not only had notice of the proceeding but also attended. He had ample opportunity to preserve error either by registering a formal objection in proper form during or after the hearing or by filing a motion for new trial. The record does not indicate he did so. Although Wilkerson expressed his dissatisfaction with the proposed judgment in the March 23 letter to the trial judge, we do not believe the letter qualifies as a motion for new trial. In the pertinent part of the letter, Wilkerson said, "I suggest that the order should not be signed. . . . If for some reason it is your decision to go ahead and sign an order granting a partial summary judgment, I would appreciate adequate time to present my own proposed order to accurately reflect the status of the pleadings, etc. at the time of the hearing." One judges a motion for new trial not by its form but by its substance. Taylor v. Trans-Continental Properties, Ltd., 739 S.W.2d 873, 876 (Tex. App.--Tyler 1987, no writ). An instrument may function as a motion for new trial even though it is not so entitled. Id. The instrument must, however, seek at minimum to have an existing judgment set aside and request relitigation of the issues. Mercer v. Band, 454 S.W.2d 833, 835 (Tex. Civ. App.--Houston [14th Dist.] 1970, no writ). Wilkerson's letter did nothing more than "suggest" the trial court not sign the proposed order and asked in the alternative for the court to delay signing the order until Wilkerson could present his own order. Such a letter is insufficient to function as a motion for new trial. See Garza v. Garza, 608 S.W.2d 260, 261-62 (Tex. Civ. App.--San Antonio 1980, writ dism'd) (rejecting a claim that a letter expressing dissatisfaction with the trial court's ruling operated as a motion for new trial, because the letter did not pray that the judgment be set aside or that the case be retried). In his motion for rehearing, Wilkerson also quarrels with this court's interpretation of Lee. Wilkerson reads the case to hold that an appellate court may hear all errors stemming from a summary judgment proceeding. We disagree with his interpretation. Lee involved a summary-judgment proceeding in which Lee filed a response to his opponent's motion for summary judgment but was not present at the hearing. The trial court granted summary judgment in favor of the movant, and Lee filed a motion for new trial explaining his absence from the hearing, which the trial court overruled. Lee, 786 S.W.2d at 262. On appeal, Lee advanced as error both his absence from the hearing and several points previously urged in his response to the motion for summary judgment. The Texas Supreme Court held that a motion for new trial was necessary under Texas Rule of Appellate Procedure 52(a) to preserve error on the absence argument but not necessary to preserve error on complaints which had already been urged in the response to the motion for summary judgment. Id. at 263. The court did not state, as Wilkerson argues, that all errors stemming from the summary judgment proceeding could be heard on appeal; it clearly limited Lee to the point raised in his motion for new trial and those points raised in his response to the motion for summary judgment. Wilkerson, on appeal, is not urging arguments raised in his response to the Flinn's motion for summary judgment; nor did he file a motion for new trial to raise his lack-of-service argument. The purpose of a motion for new trial is to inform the trial court of an error and to give the court an opportunity to correct the error. (6) Texas Rule of Civil Procedure 324 does not negate the requirement of a motion for new trial under Texas Rule of Appellate Procedure 52(a). Rule 324 is designed to make more liberal the prerequisites of appeal once a point of error has been preserved. "[A] point of error which has been properly preserved will not be waived if it is omitted from a motion for new trial . . . ." Western Const. Co. v. Valero Transmission Co., 655 S.W.2d 251, 256 (Tex. App.--Corpus Christi 1983, no writ). In the case before us, absent a statement of facts indicating a properly-made objection at or following the hearing, we conclude a motion for new trial was necessary for Wilkerson to have preserved his error. Because Wilkerson did not seek relief by a motion for new trial, we hold that he failed to preserve his contention that the trial court erred by rendering summary judgment for the Flinns. See Tex. R. Civ. P. 324(b); see also Wenco of El Paso/Las Cruces, Inc. v. Nazario, 783 S.W.2d 663, 664 (Tex. App.--El Paso 1989, no writ) (holding that an appellant complaining of improper notice of summary judgment hearing waived error by failing to object and obtain an adverse ruling). Nor did he obtain a hearing and present evidence to substantiate his allegations of late receipt. See Cocke v. Saks, 776 S.W.2d 788, 790 (Tex. App.--Corpus Christi 1989, writ denied). We overrule the first point of error. (7) GRANTING OF MOTIONS TO FILE AMENDED PLEADINGS In his second point of error, Wilkerson contends the trial court abused its discretion and denied Wilkerson due process of law by granting the Flinns' motion for leave to file the amended and supplemental petitions and their motion for leave to file the amended motion for summary judgment. He argues the court erred because (1) the Flinns filed the motions just forty-eight hours before the hearing, and (2) Wilkerson received one motion only forty-five hours before the hearing and did not receive the other motion until after the hearing. Without question, the Flinns filed their amended pleadings after the twenty-one day limit set out in Rule 166a. Tex. R. Civ. P. 166a(c) (except on leave of court, and with notice to opposing counsel, a movant for summary judgment must file and serve the motion for summary judgment and any supporting affidavits at least twenty-one days before the hearing date). We do not believe, however, that Wilkerson has established a right to relief. First, in order to preserve his complaint for appellate review, he was obliged to present a timely request, objection, or motion to the trial court and obtain a ruling thereon. Tex. R. App. P. 52. In his motion for leave to file a response to the Flinns' amended summary-judgment motion, Wilkerson alleged the amended summary-judgment motion surprised him and requested that the trial court reject the Flinns' motion for leave to file the amended summary-judgment motion. Yet the trial court's order on Wilkerson's motion only granted him leave to file his response to the Flinns' amended motion for summary judgment and his amended answer and counterclaim; the order contained no ruling on Wilkerson's request that the court deny the Flinns' motion for leave to file the amended motion for summary judgment. Consequently, Wilkerson failed to obtain a ruling on that part of his motion and did not preserve error. Moreover, even if we were to construe Wilkerson's March 23 letter to the trial court as a request within the meaning of Rule 52, we find nothing in the record to suggest the trial court ruled on that request either. See Prade v. Helm, 725 S.W.2d 525, 526-27 (Tex. App.--Dallas 1987, no writ) (holding that a party complaining of inadequate notice of a sanctions hearing under Rules 21 and 21a waived error by not making a specific objection and obtaining a ruling on that objection). Second, a summary-judgment proceeding is a "trial" within the meaning of Texas Rule of Civil Procedure 63. Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988). Rule 63 allows a party who obtains the trial judge's approval to amend pleadings within seven days of trial. Tex. R. Civ. P. 63. The trial court has no discretion to refuse a party permission to amend its pleadings or respond to pleadings of other parties unless the opposing party demonstrates surprise. Id.; see Goswami, 751 S.W.2d at 490. Wilkerson knew of the amended motion for summary judgment two days before the hearing and appeared at the hearing, but the record does not show, nor does he allege, that during the summary-judgment hearing or another hearing he demonstrated surprise or requested a continuance. See Manhattan Const. Co. v. Hood Lanco, Inc., 762 S.W.2d 617, 619 (Tex. App.--Houston [14th Dist.] 1988, writ denied) (a party waives a complaint of inadequate notice of a summary-judgment hearing when it receives notice of the hearing and appears at the hearing but does not file affidavits or request a continuance); Davis v. Davis, 734 S.W.2d 707, 712 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.) ("Since the appellant participated in the hearing on the appellees' motions for summary judgment without objection, and failed to ask for a continuance, rehearing, or new trial, he has waived any objection or right to appeal."). Wilkerson argues that Texas law allows a nonmovant at least fourteen days to prepare a response to a summary-judgment motion and to gather summary-judgment proof; in support of that contention he cites Extended Services Program v. First Extended Services, Inc., 601 S.W.2d 469 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e.). In Extended Services Program, the court of civil appeals reversed a summary judgment because the movant filed summary-judgment proof only eighteen days before the hearing. Id. at 470. That case is distinguishable from the present case, however, because in Extended Services Program the movant did not file a motion for leave to file amended pleadings. The Flinns did file motions for leave to file their amended pleadings, and the trial court granted those motions. See City of Dallas v. Continental Airlines, Inc., 735 S.W.2d 496, 500 (Tex. App.--Dallas 1987, writ denied). The granting or denial of a motion for leave to file an amended pleading is within the discretion of the trial court. White v. Independence Bank, N.A., 794 S.W. 895, 900 (Tex. App.--Houston [1st Dist.] 1990, writ denied). We do not believe the trial court abused its discretion by allowing the Flinns to amend their pleadings, particularly when the Flinns filed their summary-judgment motion on December 12, 1990, and Wilkerson did not file his response and amended pleading until three months later, just seven days before the hearing. We therefore conclude that the trial court did not err by granting the Flinns leave to file their amended pleadings or by considering the amended motion for summary judgment at the hearing. We overrule the second point of error. Finding no error in the trial-court judgment, we affirm the judgment in all respects. John Powers, Justice [Before Justices Powers, Jones and Kidd] Affirmed Filed: October 21, 1992 [Do Not Publish] 1. Although the Flinns' attorney mailed the motions and pleadings by certified mail, nothing in the record indicates when Wilkerson received the documents, nor when the Flinns received any green certificate indicating Wilkerson's receipt. 2. The Flinns argue that Wilkerson waived the point of error because his brief contains no citations to authority to support his complaint. See Lakeway Land Co. v. Kizer, 796 S.W.2d 820, 827 (Tex. App.--Austin 1990, writ denied); see also Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983). In the argument portion of his brief under the first point of error, Wilkerson's only reference to authority is, "Due process and the Texas Rules of Civil Procedure require that notice and service always be accomplished at some time prior to the hearing." He does not distinguish between the due process clauses of the Texas and federal constitutions, and does not point out which rules of procedure require service and process. We will, nevertheless, address Wilkerson's point of error. In his brief Wilkerson also states, "There are no cases which have been found by Appellant on the issue of whether or not it is proper to have a hearing on pleadings with which the non-movant has not been served nor had notice of until after the completion of the hearing." We understand this to be a statement that the argument is one of first impression. A party who asserts that an argument is one of first impression apparently does not waive the point of error, even though he or she does not cite authority. See Clear Creek Indep. Sch. Dist. v. Commissioner of Educ., 775 S.W.2d 490, 494-95 (Tex. App.--Austin 1989, no writ); Wolf v. Fernandez, 733 S.W.2d 695, 697 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.). In his motion for rehearing, Wilkerson does advance caselaw in support of his arguments. 3. We note that the standard of review for determining whether the trial court properly granted summary judgment is not applicable here. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) (setting forth the presumptions which operate in favor of the nonmovant). Wilkerson does not complain on appeal that genuine issues of fact existed as to his liability on the note, thereby precluding summary judgment. Instead, he complains only of the trial court's refusal to set aside the partial summary judgment because Wilkerson allegedly did not receive the pleadings before the hearing. 4. The amended and supplemental pleadings did not substantially change the nature of the plaintiffs' cause of action. The original petition prayed for recovery of (1) the principal amount of $142,023.60; (2) prejudgment interest of $2483.80, as well as interest accruing at a rate of 10.5% per year from August 1, 1987, to July 30, 1990, and fifteen percent interest thereafter; (3) attorney's fees of $19,000; (4) costs of court; and (5) postjudgment interest. The amended original petition prayed for (1) the principal amount of $144,030.60; (2) prejudgment interest of $10,371.74 for the period up to July 30, 1990, and fifteen percent thereafter; (3) attorney's fees of $16,885.00; (4) costs of court; and (5) postjudgment interest. Moreover, the amended petition credited Wilkerson with certain sums he claimed to have paid. Finally, the supplemental petition merely interposed a general denial to Wilkerson's counterclaim and alleged that both laches and a statute of limitation barred the counterclaim. 5. Section 3 of the Restatement (Second) of Judgments (1982), states: "When actual notice of an action has been given, irregularity in the content of the notice or the manner in which it is given does not render the notice inadequate." 6. Once the trial court's plenary power over a cause ends, there is no purpose for such a motion, and, in those situations, courts have not required a motion for new trial to preserve error for appeal. See Gomez v. Gomez, 577 S.W.2d 327 (Tex. Civ. App.--Corpus Christi 1979, no writ) (plaintiff's complaint not apparent until trial court filed findings of fact and conclusions of law ten days after trial court's judgment was final). This, however, was not the procedural posture in which Wilkerson was placed. 7. A certificate signed by the attorney of record showing service of documents is prima facie evidence of the fact of service. Tex. R. Civ. P. Ann. 21a (Supp. 1992). Thus, Rule 21 creates a presumption of actual receipt when a document is mailed properly addressed and postage prepaid. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). The presumption of service vanishes, however, when the addressee offers proof of nonreceipt. Id. The Flinns' attorney certified on March 14 that he had served on Wilkerson the motion for leave to file the amended and supplemental pleadings and the pleadings themselves. Wilkerson's sworn testimony in the attorney's fees hearing that he did not receive the pleadings was sufficient to destroy the presumption of service, but it avails Wilkerson nothing because he did not make a post-trial motion to reconsider the summary-judgment order.	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/2857675/	IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-92-396-CR EX PARTE: GERALD CHRISTOPHER ZULIANI, APPELLANT FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 102,693, HONORABLE JON N. WISSER, JUDGE PRESIDING PER CURIAM This is an appeal from an order of the district court, entered following a hearing on appellant's writ of habeas corpus, setting appellant's bail pending appeal at $50,000. Tex. R. App. P. 44. Appellant is presently incarcerated following his conviction for the offense of injury to a child, for which he was sentenced to imprisonment for ten years and a $10,000 fine. Appellant's appeal from that conviction is pending in this Court as our cause number 3-92-110-CR. Prior to trial, appellant was released on a $50,000 surety bond. Following his conviction, the district court ordered that appellant's bail pending appeal be set at $125,000. As noted above, the court reduced bail to $50,000 following the habeas corpus hearing. (1) In his first point of error, appellant urges that the court abused its discretion by setting bail in an amount exceeding $10,000. The primary purpose of bail is to secure the presence of the defendant. Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977). While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. Id.; Tex. Code Crim. Proc. Ann. art. 17.15 (West Supp. 1992). Among the factors considered relevant in setting the amount of bail pending appeal are: the nature of the offense and the punishment assessed; the defendant's work record, family ties, and length of residence in the community; the defendant's ability to make the bail; and the defendant's conformity with previous bond conditions. Ex parte Davila, 623 S.W.2d 408 (Tex. Crim. App. 1981). Appellant was found guilty of recklessly causing bodily injury to a child. The evidence at the hearing reflects that the child died, and the judgment of conviction includes a finding that appellant used a deadly weapon (his hands, a wall, or a blunt object) during the commission of the offense. The punishment assessed is the maximum applicable to the offense. Tex. Penal Code Ann. § 22.04(e) (West Supp. 1992). This is appellant's only criminal conviction. Appellant is twenty-four years old. He has lived in Austin since infancy. Appellant's parents, grandmother, and several uncles and cousins live in Austin, as does his fiancee. Appellant was employed before his arrest. Since that time, he has worked at various temporary jobs when not incarcerated. While free on bond before trial, appellant lived with his parents or with his fiancee. Appellant never missed a court appearance. Appellant's mother testified that he has no possessions except his bed and his clothing. His parents still owe the attorneys who represented appellant at trial $12,000 of the $20,000 fee. Appellant's mother estimates that she and her husband can pay no more than $1500 for a bond. The burden of proof is on the applicant for reduction of bail to show that the bail set is excessive. Ex parte Vasquez, 558 S.W.2d at 479. We hold that appellant has not demonstrated that the district court abused its discretion in setting bail in the present amount. The first point of error is overruled. In his second point of error, appellant contends that the court erred by granting the State's motion that it take judicial notice of all filings, proceedings, and records of his trial. Appellant argues that because the statement of facts from the trial had not been transcribed at the time of the hearing, the noticed facts were not capable of accurate and ready determination. Tex. R. Crim. Evid. 201(b). Appellant also notes that the court below is not the court in which he was tried, that the judge below did not preside at his trial, and that his counsel in this habeas corpus proceeding did not represent him at trial. See Ex parte Turner, 612 S.W.2d 611 (Tex. Crim. App. 1981). Assuming that the court erred by granting the State's motion, we conclude that the error was harmless. Tex. R. App. P. 81(b). At the conclusion of the habeas corpus hearing, the court stated: The Court finds itself in a somewhat awkward position in this matter, not having been the Court in which this matter was tried. Judge Thurman, with his vast experience, having set the bond and this Court having to some extent learn the thoughts of Judge Thurman is somewhat reluctant to do anything other than what Judge Thurman would order. However, I don't believe Judge Thurman had the benefit of these cases and Mr. Morgan's [defense counsel] able argument at the time he set the bond. And based on these cases it does appear that the current bond is beyond what the appellate courts would sustain. And for that reason alone the Court is going to reduce the bond to $50,000 and let any further reduction be done by the Court of Appeals. From these remarks by the court, it is apparent that it did not consider any facts adduced at trial in making its order. (2) Because the judicially noticed facts did not enter into the court's decision, any error in taking judicial notice was harmless beyond a reasonable doubt. The order of the district court is affirmed. [Before Justices Powers, Aboussie and B. A. Smith] Affirmed Filed: September 30, 1992 [Do Not Publish] 1. The judge who presided at appellant's trial and who initially set bail pending appeal has retired. A different judge issued the writ of habeas corpus, conducted the hearing, and rendered the order from which this appeal is taken. 2. All facts recited in this opinion were introduced in evidence at the hearing below.	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/1520198/	587 S.W.2d 429 (1979) John HARRIS aka Marcus Johnson, Appellant, v. The STATE of Texas, Appellee. No. 61920. Court of Criminal Appeals of Texas, Panel No. 2. October 10, 1979. *430 Floyd W. Freed, III, Craig M. Shivers, Houston, for appellant. Carol S. Vance, Dist. Atty., Kristen E. Moore and Bob Moen, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State. Before DOUGLAS, PHILLIPS and CLINTON, JJ. OPINION DOUGLAS, Judge. Appellant was found guilty of the charge of theft of property of the value of over $200 but less than $10,000, following a plea of nolo contendere. Punishment was assessed by the court at three years. Harris challenges the indictment as being fatally defective for an inadequate description of the property taken. Article 21.09, V.A.C.C.P. The indictment alleges that Harris did "... appropriate property, namely property, owned by RAY PRITCHARD, hereafter styled the Complainant, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the Complainant of the property, and without the effective consent of the Complainant." (Emphasis added). There was no motion to quash filed in the trial court. The matter is being raised for the first time on appeal in appellant's pro se brief. Therefore, if reversible, the indictment must be considered in terms of a fundamental defect. Rhodes v. State, 560 S.W.2d 665 (Tex.Cr.App.1978). In Rhodes, the Court compared numerous recent cases in order to determine just when a property description is so vague as to be denoted fundamental error. The Court concluded that a defect must be raised by a motion to quash unless the description is so vague as to be no description at all. Only then will it be considered a jurisdictional defect and capable of being raised for the first time on appeal. In Willis v. State, 544 S.W.2d 150 (Tex.Cr. App.1976), the defendant was charged with theft of "merchandise" of the value of at least $20.00 but less than $200.00. That description was held to be so vague as to render the indictment fundamentally defective. The judgment of conviction was reversed. This writer asserted in Willis, and would re-assert today, that such a deficiency goes only to notice to the defendant and not to the jurisdiction of the trial court. Therefore a motion to quash should be required before the matter will be subject to review on appeal. The Court, however, reaffirmed the holding of Willis in its disposition of Rhodes. There the Court stated: "`Merchandise' is so general and non-descriptive as to constitute no allegation of the property at all. It could as well have alleged merely `property.'" The indictment in the case at bar, having alleged merely "property", is insufficient. The judgment of conviction is reversed and the prosecution is ordered dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520199/	98 Pa. Commonwealth Ct. 319 (1986) 511 A.2d 900 Paul James, Appellant v. Big Beaver Falls Area School District, Appellee. No. 2735 C.D. 1985. Commonwealth Court of Pennsylvania. June 23, 1986. Argued February 5, 1986. Before President Judge CRUMLISH, JR., and Judges ROGERS, CRAIG, DOYLE, BARRY, COLINS and PALLADINO. William J. Maikovich, for appellant. 320 Samuel J. Orr, III, for appellee. OPINION BY JUDGE DOYLE, June 23, 1986: This is an appeal by Paul James from an order of the Court of Common Pleas of Beaver County which affirmed a determination of the Big Beaver Falls Area School District (District) holding that James' suspension because of declining enrollment pursuant to Section 1125.1 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, (School Code) 24 P.S. § 11-1125.1, was valid.[1] The relevant facts are not in dispute. James is a professional employee with the District and is certified to teach only Social Studies. Paulette Potter, who is black, is a professional employee with the District and is certified in Social Studies, Spanish and Elementary Education. James is senior to Potter who is in turn senior to at least one elementary school teacher who was not suspended. At the time relevant to this appeal Potter was teaching four classes of Spanish and two classes of Black Studies, a course which she developed. Robert Blythe is also a professional employee with the District and is certified to teach Social Studies. Blythe served twenty-one 321 months in the armed services (March 1965 through January 1967) including approximately a one year tour of duty in Vietnam and was honorably discharged. Blythe and James are equal in seniority within the District. Under the relevant collective bargaining agreement where a suspension under Section 1125.1 is necessary and employees are of equal seniority, lots are to be drawn. In the instant case with respect to Blythe and James lots were drawn and James was determined to be the more senior employee. The District, however, pursuant to Section 7107 of what is commonly known as the Veterans' Preference Act (Act), 51 Pa. C. S. §7107, awarded Blythe twenty-one months seniority for his time in the military and hence suspended James.[2] James argued below and now argues as well two alternative theories in which he asserts that the District improperly determined that he should be the employee suspended.[3] With respect to Blythe, James contends that application of Section 7107 of the Act to Section 1125.1 of the School Code is improper. It is undisputed that had Blythe not been given seniority credit for his 322 military service, James, who won the lottery, would be deemed the more senior necessitating the suspension of Blythe rather than James. We have already decided the question of the applicability of the Act to Section 1125.1 of the School Code in Northeastern Educational Intermediate Unit No. 19 v. Stephens, 98 Pa. Commonwealth Ct. 127, 510 A.2d 1267 (1986) (NEIU) considering there all of the statutory construction, constitutional, and public policy arguments raised here. We held in NEIU that Section 7107 of the Act is properly applied to Section 1125.1 of the School Code for purposes of computing seniority and that such application is constitutional. NEIU controls the result here. With respect to Potter, James asserts that because he is senior to her and because she teaches two classes of Social Studies for which he, too, is certified he should have been reassigned to teach those two classes.[4] We must reject this contention. While it is true that suspension under Section 1125.1 is premised only upon seniority, we held in Godfrey v. Penns Valley School District, 22 Pa. D. & C. 3rd 466 (1981) affirmed on the opinion of the trial court at 68 Pa. Commonwealth Ct. 166, 449 A.2d 765 (1982), that in instances involving employees with multiple certification, and the resultant checkerboarding of professional staff from one department to another, the practicalities of such realignment is a valid district consideration.[5] In Godfrey the appellant, 323 who was certified to teach only music, sought to bump a more senior teacher possessing dual certification maintaining that that teacher could then teach in his other area of certification, which would entail the suspension of a third teacher who had less seniority than the complaining teacher. We rejected Godfrey's contention because Godfrey sought to displace the other (third) teacher not on the basis of strict seniority within the area of music certification, but on the basis of the other (second) teacher's certification to teach another subject a credential Godfrey and other (third) teacher did not share. More recently, in Gibbons v. New Castle Area School District, 93 Pa. Commonwealth Ct. 28, 500 A.2d 922 (1985), we recognized that realignment under Section 1125.1 must be based solely on seniority. In Gibbons the trial court affirmed the school board's decision to realign Gibbons from his position as a junior high school principal to the position of senior high school assistant principal. The specific facts as related in Gibbons were as follows: In June of 1982, the board closed George Washington Junior High School (Washington), one of the two junior highs in the district at that time; the board transferred the seventh and eighth grade students from Washington to Franklin and the ninth grade students to [New Castle] Senior High. The board's decision to close Washington required a realignment of the secondary school administrators involving the abolition of two secondary administrator's positions. Consequently, the board returned the two least senior secondary administrators to the classroom as teachers, and assigned the two most senior administrators, who had been the principal and assistant principal of Washington, to Franklin as its 324 principal and assistant principal. [Gibbons], who was the third most senior secondary school administrator, and who had previously been principal of Franklin, was appointed assistant principal of [New Castle] Senior High. The board retained Frank Dattilo, who ranked fifth on the seniority list for secondary school administrators, in his position as principal of the Senior High. Id. at 30, 500 A.2d at 923. Although the school district maintained that it believed that senior high school administrative experience made Dattilo a better choice than Gibbons, we, in reversing the trial court, rejected the notion that the district had discretion in such matters noting that Section 1125.1, unlike former Section 1125, mandates strict seniority. Gibbons did not involve multiple certifications and distinguished Godfrey, noting that in Godfrey "there was no basis for mandating an alternative realignment . . . because the complaining teacher's certification was different from that of the individual whose displacement he sought through the realignment process." Gibbons, 93 Pa. Commonwealth Ct. at 37, 38, 500 A.2d at 926. Thus Gibbons recognized that in situations like Godfrey where the complaining teacher seeks to displace another teacher on the basis of the other's certification in an area not shared by the complaining teacher, the Section 1125.1 provision of mandatory realignment based upon blind adherence to seniority only is not required. In the Gibbons case the Court specifically noted that both Gibbons and the teacher he sought to displace possessed "qualifications officially certified to be equal." Id. at 38, 500 A.2d at 927. In the instant case, unlike in Gibbons, the complaining teacher (James) attempts to use Potter's Spanish certification, a credential he does not share with her, as a basis for displacing her. Thus 325 this situation is more akin to Godfrey and accordingly, the strict seniority requirements of Section 1125.1 do not come into play and the District may consider the practicalities of realignment. Cf. Gibbons; Godfrey. When such practicalities are considered, we note that Potter not only has multiple certification but also is actually teaching in more than one area of her certification. James is not certified in multiple areas. Thus if he displaces Potter he can do so only for two of her classes. And if, as James asserts, Potter can be reassigned to teach Elementary Education full-time[6] another individual must be found to teach her four classes of Spanish. The result of this would be not a domino effect, where each employee bumps a less senior one, but a snowballing effect where the bump of Potter requires realignment of two other employees just to accommodate her position. For the District to conclude that such practices would be impractical is certainly understandable. If instead, Potter retained her four classes of Spanish (which is unlikely because she is the least senior Spanish teacher) either two other classes would have to be found to complete her load, perhaps necessitating further bumping in the Social Studies area, or in the alternative James would be employed for one-quarter of each day and Potter for three-quarters of each day. Finally, if Potter is suspended from her four Spanish classes and a more senior teacher (James) is realigned to teach her Black Studies classes, then we again have a snowball effect where two teachers are realigned to Potter's position, one to teach Black Studies (James) and one to teach Spanish. Again the impracticalities of assessing in detail these multiple alternatives, especially on a district-wide basis, is evident. 326 James also asserts that the District denied him the right to teach the two Black Studies classes because he is white. Had the District done so a constitutional violation would be evident. But, in truth, this is not what occurred. Testimony established that Potter had developed the Black Studies courses and was the most knowledgable in the subject area. Additionally, there had been a period when two teachers other than Potter were teaching the courses. During that period enrollment in the courses dropped. We believe this factor could be validly considered by the District in determining the propriety of alignment. Another factor which is properly considered by a district in assessing the practicality of whether to align a given teacher is the fact that the teacher designed a particular course. Godfrey, 22 Pa. D. & C. 3rd at 472. Thus, based upon the facts that Potter developed the course and that it enjoyed its highest levels of popularity when she taught it we cannot say that the District erred in concluding that replacement of Potter with another employee, in this case James who happens to be white, would have been disruptive to ongoing educational programs and educationally unsound. As the trial court aptly noted, "the District's motivation was to prevent the disruption of an ongoing educational program and had nothing to do with race. If race was a factor, it was only a factor to the students and not to the District." Having determined that the procedures below were not in violation of Section 1125.1 of the School Code and having further determined that no constitutional infirmity exists, we affirm the order of the trial court. ORDER NOW, June 23, 1986, the order of the Court of Common Pleas of Beaver County, No. 437 of 1985 dated September 9, 1985 is hereby affirmed. 327 DISSENTING OPINION BY JUDGE COLINS: I dissent. The area of certification at issue is Social Studies. There is no separate certification in the area of Black Studies. Appellant is the more senior teacher in this certification and, therefore, should not be suspended. While the rationale of the majority may be salutary, it is clear that Section 1125.1 mandates that suspensions be premised solely upon seniority. It is for the legislature, not the courts, to amend this statute, if necessary. NOTES [1] Section 1125.1 which was added by Section 3 of the Act of November 20, 1979, P.L. 465, provides in pertinent part: (a) Professional employes shall be suspended under section 1124 (relating to causes for suspension) in inverse order of seniority within the school entity of current employment. Approved leaves of absence shall not constitute a break in service for purposes of computing seniority for suspension purposes. Seniority shall continue to accrue during suspension and all approved leaves of absence. . . . (c) A school entity shall realign its professional staff so as to insure that more senior employes are provided with the opportunity to fill positions for which they are certificated and which are being filled by less senior employes. [2] Section 7107 of the Act provides: Whenever a reduction in force is necessary in any public position, or on public works of the Commonwealth and its political subdivisions, and personnel are discharged according to seniority, the number of years of service of any soldier shall be determined by adding his total years of service in the civil service or on public works to his total years of service as a member of the armed forces of the United States, or in any women's organization officially connected therewith during any war in which the United States engaged. [3] Our scope of review is limited to determining whether there has been a constitutional violation or an error of law and whether the findings of fact are supported by substantial evidence. Platko v. Laurel Highlands School District, 49 Pa. Commonwealth Ct. 210, 410 A.2d 960 (1980). [4] We note that Section 1125.1 requires realignment to "positions." Whether two classes out of six constitute a position was an issue that the trial court declined to reach. We are unable to reach it because it was not raised on appeal. [5] For cases decided under former Section 1125, which Section was devoid of an express mandate to realign with seniority as the controlling factor, see Platko; Tressler v. Upper Dublin School District, 30 Pa. Commonwealth Ct. 171, 373 A.2d 755 (1977); Smith v. Harmony Area School District, 16 Pa. Commonwealth Ct. 175, 328 A.2d 883 (1974). These cases also allow the districts to consider the practicality of realignment. [6] We are inclined to agree with the trial court that Section 1125.1 does not require realignment from secondary to elementary education. See Sto-Rox School District v. Horgan, 68 Pa. Commonwealth Ct. 416, 426, 449 A.2d 796, 801 (1982).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520204/	98 Pa. Commonwealth Ct. 436 (1986) 511 A.2d 929 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, Appellant v. James G. Uebelacker, Appellee. No. 515 C.D. 1984. Commonwealth Court of Pennsylvania. Submitted on briefs March 10, 1986. June 30, 1986. 437 Submitted on briefs March 10, 1986, to Judges CRAIG, DOYLE and PALLADINO, sitting as a panel of three. Michael R. Deckman, Deputy Chief Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant. Richard Mancini, for appellee. OPINION BY JUDGE DOYLE, June 30, 1986: The Pennsylvania Department of Transportation, Bureau of Traffic Safety (DOT) appeals from an order of the Court of Common Pleas of Beaver County which vacated DOT's order suspending the operating privileges 438 of James G. Uebelacker (Appellee) for his refusal to submit to a blood alcohol test pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C. S. §1547(b), (Code). The trial court based its decision entirely on the testimony of Assistant Police Chief Jack E. Mintier of the South Beaver Township Police Department. Officer Mintier stated that on September 24, 1983, he arrived at the scene of a two car accident, where he found Appellee, who admitted that he had been operating one of the vehicles involved, standing alongside a third, uninvolved vehicle, in a "very relaxed type of attitude." The officer also testified that, upon determining that both operators required medical attention, he radioed for an ambulance and then followed the ambulance to the hospital, where he waited for Appellee to be examined. His testimony regarding the events at the hospital was a follows: A. At the hospital, after he was examined, I went into where the bed was, where he was at, and advised him that he was going to be arrested for driving under the influence of alcohol and I would like him to submit to a blood test. And, at that time, he had asked me to explain to him what would and wouldn't happen. So I explained to him if he did not take the blood test, his operator's privileges would be suspended and that the blood test is to verify the amount of alcohol content in his blood. Q. And what was his response to your request to take a blood test? A. He refused to take the test. Q. Did you have any further contact with Mr. Uebelacker? A. Mr. Uebelacker, I just talked to him briefly after, and then he had me to go over the fact I 439 was going to arrest him for DUI, and, at that time, I talked with his wife, who was also at the hospital, and, of course, he was released. Q. Did you, in fact, arrest him for DUI? A. Yes, sir, I did. The court of common pleas concluded that although Appellee had been informed twice that he was going to be placed under arrest, no such arrest actually occurred prior to the request that he submit to a chemical test. DOT now argues that the court erred in this conclusion. Our scope of review where the lower court hears the matter de novo is limited to a determination of whether or not the court based its findings of fact on substantial competent evidence or committed an error of law. Phillips v. Commonwealth, 84 Pa. Commonwealth Ct. 217, 478 A.2d 958 (1984); Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704. An operator's driving privileges may be suspended for refusing to submit to a chemical test where the operator (1) was placed under arrest for driving under the influence of alcohol in a situation where the arresting officer had reasonable grounds to believe the operator was driving while intoxicated; (2) was asked to submit to a test; (3) refused to so do; and (4) was warned that his license would be revoked if he refused to take the test. See Phillips. The question of whether or not a driver has been "placed under arrest" for purposes of Section 1547(b) of the Code is a factual, rather than a legal determination, and all that is necessary is that the driver be under the custody and control of the person effecting the arrest. Gresh v. Department of Transportation, Bureau of Traffic Safety, 76 Pa. Commonwealth Ct. 483, 464 A.2d 619 (1983). Appellee asserts that the relevant inquiry in this case is whether any act occurred which should have conveyed to him, as the allegedly arrested party, the 440 reasonable impression that he was subject to the officer's custody and control. For this proposition, he cites Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 cert. denied, 375 U.S. 910 (1963), and a line of cases decided thereunder, e.g., Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132 (1979); Commonwealth v. Benson, 280 Pa. Superior Ct. 20, 421 A.2d 383 (1980). The Bosurgi test has been incorporated into the definition of arrest under Section 1547(b) of the Code. See Glass v. Department of Transportation, Bureau of Traffic Safety, 460 Pa. 362, 333 A.2d 768 (1975); Commonwealth v. Gresh, 76 Pa. Commonwealth Ct. 483, 464 A.2d 619 (1983). In further refining the test, however, we have consistently held that no formal declaration of arrest or act of physical force is required. Gresh. Applying this test to the facts found by the trial court, we cannot agree with that court's conclusion that no arrest occurred prior to Officer Mintier's request that Appellee take a blood test. The court found that the officer radioed for an ambulance, followed the ambulance to the hospital, waited until Appellee was confined to bed, and then told him he was going to be placed under arrest for driving under the influence of alcohol, all of which demonstrate a most responsible approach to the situation presented. Surely the reasonable impression of Appellee should have been that he was subject to the officer's custody and control at that point in time. It was not necessary for the officer to use the exact words, "You are now under arrest." Given the totality of the circumstances, we think a reasonable interpretation of the officer's words and actions would have been that he was going to place Appellee under arrest, not sometime in the future, but immediately. Anything the officer may have said to Appellee regarding arrest after Appellee had refused to submit to the blood test is *441 irrelevant to the question of whether or not the Appellee was under arrest at the time the refusal was made. We will reverse the trial court and reinstate DOT's suspension of Appellee's driving privileges. ORDER NOW, June 30, 1986, the order of the Court of Common Pleas of Beaver County, No. 1504 of 1983, dated January 12, 1984, is hereby reversed. The order of the Pennsylvania Department of Transportation is reinstated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520205/	587 S.W.2d 521 (1979) VANGUARD EQUITIES, INC., and Testor, Inc., Appellants, v. W. Harold SELLERS, Trustee, Appellee. No. 1438. Court of Civil Appeals of Texas, Corpus Christi. August 30, 1979. 522 Stanley A. Durak, Salt Lake City, Utah, for appellants. Grant Cook and Michael K. Swan, Reynolds, Allan & Cook, Houston, for appellee. OPINION NYE, Chief Justice. This is a suit to quiet title. W. Harold Sellers, Trustee, owner of the legal title to a certain 1,252 acre tract of land located in Cameron County, Texas, filed suit against Testor, Inc. (Testor), and Vanguard Equities, Inc. (Vanguard), to remove as a cloud on the title to his property, a certain "Assignment of Trust" executed by Vanguard. This Assignment purported to convey to Testor some equitable interest Vanguard allegedly owned in the property. Vanguard did not file an answer or participate in the trial. Testor defended under a general denial. After a trial to the court the judge entered a default judgment as to Vanguard, cancelled the Assignment, thereby quieting the owner's title as to Vanguard and Testor. Testor and Vanguard appealed. The record discloses that Vanguard was an Illinois corporation formed for the purpose of acquiring property for speculative purposes. Vanguard was incorporated sometime in 1973, by an attorney named Stanley Durka. Durka, Ward Saylor, and Robert D. McNeil served in varying capacities as the officers of Vanguard. The record shows that Durka and Saylor were the primary shareholders of Vanguard. Testor is a Delaware corporation which was also 523 incorporated by Durka sometime in May of 1976, as a closely held family corporation. Neither McNeil nor Saylor were shareholders of Testor. The land in question is part of an area located in Cameron County which is commonly called Boca Chica Beach. Record title to the property was held by Harold Sellers as Trustee under a warranty deed dated June 11, 1974. The deed, which was introduced into evidence at the trial, did not disclose the identity of the equitable title holders. The Assignment, which allegedly clouded Mr. Sellers' title, was introduced into evidence. It purports to have been executed by Saylor and Durka, and their respective capacities of President and Secretary of Vanguard. The Assignment (filed in the Deed Records of Cameron County on January 12, 1977) stated: "WHEREAS, VANGUARD EQUITIES, INC., an Illinois Corporation, presently owns ONE HUNDRED PERCENT (100%) of all beneficial interests in and to that certain Trust Agreement evidenced by Letters dated August 30, 1974, and July 22, 1975, addressed to Stanley A. Durka, Attorney at Law ... * * * * * * NOW, THEREFORE, FOR VALUE RECEIVED, said VANGUARD EQUITIES, INC., an Illinois Corporation, pursuant to appropriate authority of and at the direction of said Corporation's Board of Directors, DOES HEREBY GRANT, SELL, CONVEY, ASSIGN, TRANSFER and DELIVER to TESTOR, INC., a Delaware Corporation, and its assigns, all of its rights in and to said Trust, including all powers of direction with respect thereto and the beneficial interests therein...." Shortly after the Assignment was recorded, Mr. Sellers filed this suit against Vanguard and Testor, alleging that such assignment was a forgery and as such was a cloud on his record title. Sellers prayed for the cancellation of the Assignment and for general relief. Testor filed an "Abstract of Title" in response to Sellers' demand under Rule 791, T.R.C.P. Prior to the time evidence was presented in the trial court, the trial judge granted a default judgment against Vanguard for its failure to answer or to appear. The trial judge denied Durka's oral request (made the day the trial commenced) to participate in the trial as an attorney on behalf of Vanguard. At trial, Durka participated as one of the attorneys for Testor, and as a witness. According to Durka, Vanguard claimed an equitable interest in the property as a consequence of certain letter agreements between "The Sellers Group" (Sellers) and "The Durka Group" (Vanguard), which allegedly set forth some of the terms of a "joint venture" arrangement between the two groups. Sellers' position at trial was that the purported joint venture, if any had been contemplated, was never consumated, and that he (Sellers) held the property as Trustee for certain other beneficiaries, pursuant to the terms of another trust. In support of the judgment cancelling the Assignment and quieting Sellers' title to the land in question, the trial judge filed the following relevant findings of fact: "The document entitled `Assignment of Trust,' dated August 24, 1975, ... was not executed by the parties who are purported to have executed the same. "That the document entitled `Assignment of Trust,' described hereinabove, was the only document offered in evidence which purported to convey any title or interest, equitable or otherwise, in the subject property to Defendant Testor." Before addressing the points of error which are before us on appeal, we shall first consider Sellers' cross-point, which complains that this Court has no jurisdiction to consider an appeal on behalf of Vanguard because Vanguard failed to timely perfect its appeal. We agree. In this case, the trial court's judgment was entered on July 18, 1978. Thereafter, on July 28, 1978, a document entitled, "Motion for Correction of Judgment and in the Alternative Motion for New Trial," was filed on behalf of Testor. This motion was heard and overruled by the trial court by an 524 order entered on September 1, 1978. The cash deposit in lieu of a bond was filed on October 2, 1978, on behalf of both Testor and Vanguard. The sole "Appellant's Brief" in this appeal was filed on behalf of both Testor and Vanguard. Rule 356 of the Texas Rules of Civil Procedure requires that the bond for cost on appeal must be filed with the clerk of the trial court within thirty days after rendition of judgment or order overruling a motion for a new trial, or after a motion for a new trial is overruled by an operation of law. The requirement that the bond or deposit be filed within thirty days is mandatory and jurisdictional, Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956); Governing Board v. Pannill, 561 S.W.2d 517, 520 (Tex.Civ.App. Texarkana 1977, n. r. e.); Metal Enterprises, Inc. v. Don Love, Inc., 559 S.W.2d 90, 92 (Tex.Civ.App.Houston (1st Dist.) 1977, no writ); Roth v. Maryland American General Insurance Co., 454 S.W.2d 779 (Tex.Civ. App.San Antonio 1970, writ ref'd). Where there are several appellants, appellate jurisdiction is acquired only to those appellants who have timely filed an appeal bond, or who timely amend a defective bond. Woods Exploration and Producing Co. v. Arkla Equipment Co., 528 S.W.2d 568 (Tex.Sup.1975); Governing Board v. Pannill, 561 S.W.2d 517, 520 (Tex.Civ.App. Texarkana 1977, writ ref'd, n. r. e.); Elliott v. San Benito Bank & Trust Co., 137 S.W.2d 1070, 1071 (Tex.Civ.App.San Antonio 1940, no writ). We conclude that the cash deposit, which was timely for Appellant Testor, was tardy as to Vanguard. Since Vanguard did not file a motion for a new trial (as did Testor), it was obligated to file a (cash) bond (or deposit in lieu thereof) within thirty days following the entry of the trial court's judgment on July 18, 1978. This was not done. Vanguard has not attempted to utilize any other method appropriate in situations where an appeal will not lie to question the validity and scope of the trial court's default judgment. See e. g., Anglo Mexicana de Seguros, S.A. v. Elizondo, 405 S.W.2d 722 (Tex.Civ.App.Corpus Christi 1966, n. r. e.). We, therefore, conclude that we do not have jurisdiction to consider an appeal on behalf of Vanguard. That portion of this appeal is dismissed. Our major problem concerning Testor's appeal is the "shot-gun" method in which it has attempted to attack the trial court's judgment. This is well illustrated by its prayer in its brief in which at least twelve separate prayers requesting relief are set out, most of which were never at issue in the trial court. For illustration, the request include relief for: 1) a summary judgment against Harold Sellers; 2) Judgment on the Pleading in Court; 3) censor and other appropriate discipline of the plaintiff as a member of the bar, by reason of his misconduct demonstrated by this record; 4) for "remandment (sic) for either additional evidence on specific particular issues or for a new trial"; and so forth. Appellant also contends that "While the nature of Sellers' `trust' is the principal issue in the case, the record also presents for review several additional issues of importance which may be summarized as follows .... (listing of eighteen separate "corollary issues"). The result is that this brief, by an out-of-state attorney, is presented in an almost incomprehensible manner. Points of error 7, 10, 11, and 12 contain no authorities and present only general arguments. A point of error that is not briefed fails to meet the minimum requirements of Rule 418, Texas Rules of Civil Procedure, and is considered to be waived by the Appellate Court. Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex.Civ.App.Corpus Christi 1976, writ ref'd n. r. e.) cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); Inman v. Padrezas, 540 S.W.2d 789, 797 (Tex.Civ.App.Corpus Christi 1976, no writ); City of Wichita Falls v. Harris, 532 S.W.2d 653, 652 (Tex.Civ.App.Fort Worth 1975, writ ref'd, n. r. e.). It is not up to the appellate courts to brief points of error for the attorneys. Many of the other points of error are argued in such a general manner that we cannot determine, with any degree 525 of certainty, the nature of the complaints, or the relevancy to this appeal. Even though it has long been the policy of this Court to indulge in a liberal construction of the briefing rules and to give every effect possible thereto, the determination of this appeal is most difficult. See our local rules relevant to "Briefs" in Continental Oil Co. v. Dobie, 552 S.W.2d 183, 187 (Tex.Civ.App. Corpus Christi 1977, writ ref'd, n. r. e.) and Rules 414, 422, Texas Rules of Civil Procedure. As we understand Appellant's point of error number six, Testor is complaining that the "Assignment of Trust" in question cannot constitute a cloud on Sellers' legal title as a matter of law. Testor is apparently contending that, because the Assignment from Vanguard does not claim to represent a legal interest in the land in question, its claim of beneficial interest "affirms, rather than attacks, such legal title as plaintiff holds himself out as possessing." This contention is without merit. A cloud on title has been generally defined as a semblance of title, either legal or equitable, which is, in fact, invalid or would be inequitable to enforce. In other words, a cloud on title is an outstanding claim or encumbrance apparently valid, but is in fact, invalid. This Court has previously defined a cloud on title as follows: "Any deed, contract, judgment or other instrument not void on its face which purports to convey any interest in or makes any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner." (Emphasis added.) Best Investment Co. v. Parkhill, 429 S.W.2d 531 (Tex.Civ.App.Corpus Christi 1968, no writ). See also Fidelity Union Fire Ins. Co. v. First National Bank of Crosbyton, 18 S.W.2d 800 (Tex.Civ.App.Amarillo 1929, no writ); and 47 Tex.Jur.2d § 6, Quieting Title (1963). Durka, attorney for Testor and Vanguard, testified that he had drafted the Assignment as attorney for Vanguard and that he and Saylor were acting in their respective capacities as Secretary and President of Vanguard; and that they executed the Assignment on behalf of Vanguard in the presence of Durka's wife, a notary public who thereafter acknowledged the signatures of the parties to the Assignment. Durka testified that at the time the Assignment was executed, the assignee was then undesignated and that he (Durka) later completed the Assignment by filling in the name of Testor after that corporation had been incorporated. Durka stated that he then ultimately filed the Assignment of record. Saylor, on the other hand, testified that he did not recognize the Assignment; and that he could not identify the signature thereon as being his own. He stated unequivocally that he did not believe the signature on the Assignment was his. The trial judge chose to believe Saylor and not Durka. Assuming that Vanguard was, in fact, an owner of an equitable interest in the land that Mr. Sellers held as trustee, there is direct testimony and documentary evidence in the record from which the trial judge, as the fact finder, could reasonably conclude that the Assignment would require, (pursuant to the bylaws of Vanguard), two valid signatures of designated officers of the corporation as a prerequisite to the Assignment's validity. There was other evidence in the record that showed that the signature of Ward Saylor, President, was, in fact, a forgery and was not his genuine signature. The trial judge found that the "Assignment of Trust" had not been executed by the parties who purported to have executed it. This Assignment is the only basis upon which Testor claims any beneficial interest in the land in question. Testor's rights are only as valid as the instrument under which it purports to derive such beneficial interest. Accordingly, the trial court's judgment cancelling and setting aside the Assignment as a cloud on Sellers' title entitles the plaintiff to a judgment as such. The only other point of error attacking such finding states: "The trial court's findings of fact, upon which its judgment below is based, are either insufficient as a matter *526 of law or contrary to the evidence." This point of error (number ten) has not been briefed either. Even if it had been briefed and we were to consider such a point of error to include both "legal sufficiency" and "factual sufficiency" assignments, they would be overruled on the merits anyway. For the law, see Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Finally, Testor attempts to complain that the trial court erroneously set aside any claim that Vanguard (the defaulting defendant) may have had in the property in question. First of all, Testor's claimed beneficial interest in the land failed in the trial court because of the invalidity of the Assignment. As the record stands before us, however, the trial court's action in setting aside the purported equitable interest of Vanguard in the land in question is immaterial as to Testor. Even if we were to consider Testor's contention that the trial court erred when it failed to recognize that Vanguard had an equitable interest in the property, which had been created by certain letter agreements evidencing a purported joint venture between Sellers and Vanguard, such Assignment would be overruled as to Testor. The evidence at most on this issue is conflicting. Since no findings of fact or conclusions of law were requested or filed concerning this phase of the case, it is assumed that the trial court found every fact necessary to sustain the judgment if such factual propositions were raised by the pleadings and evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). See Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); City of Corpus Christi v. Gilley, 458 S.W.2d 124 (Tex.Civ.App. Corpus Christi 1970, n. r. e.). We have carefully considered each point of error presented, and find no error in the trial court's judgment which would warrant a reversal. Rule 434, T.R.C.P. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520206/	464 F.Supp. 966 (1979) In re MOLINARO/CATANZARO Patent Litigation. No. 170. Judicial Panel on Multidistrict Litigation. January 10, 1979. Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD[], EDWIN A. ROBSON[], STANLEY A. WEIGEL, ANDREW A. CAFFREY[], ROY W. HARPER and CHARLES R. WEINER, Judges of the Panel. Before the Judicial Panel on Multidistrict Litigation. 967 OPINION AND ORDER PER CURIAM. I. BACKGROUND The matter now before the Panel involves three actions in three districts: one each in the Middle District of Pennsylvania, the Eastern District of New York and the Southern District of New York. A. Prior Panel Rulings The Panel issued its first opinion in this docket in July, 1974. In re Molinaro/Catanzaro Patent Litigation, 380 F.Supp. 794 (Jud.Pan.Mult.Lit.1974). At that time the Panel centralized, pursuant to 28 U.S.C. § 1407, nine actions in the Southern District of New York before the Honorable Charles M. Metzner. Each of these actions involved a patent on a "station-sampling radio"[1] and was brought, pro se, by Edward T. Molinaro (Molinaro) and Anthony P. Catanzaro (Catanzaro). These individuals were, respectively, the original patentee and the assignee of a fifty percent interest in the patent at issue. Defendants in these actions were manufacturers and/or retailers of radio equipment whose products allegedly infringed upon Molinaro and Catanzaro's patent rights. In ordering transfer under Section 1407, the Panel held: Although the question of whether . . a particular defendant's product infringes plaintiffs' patent may not involve questions of fact common to the other infringement actions, the key issue in each of these actions is whether plaintiffs' patent can withstand defendants' charges of invalidity. And that issue raises complex questions of fact common to each action and defendants will necessarily pursue similar, if not identical, discovery against plaintiffs to elicit those facts. A Section 1407 transfer of all actions to a single district for coordinated or consolidated pretrial proceedings will insure that that discovery is not duplicated and avoid unnecessary inconvenience to the plaintiffs and their witnesses. In re Molinaro/Catanzaro Patent Litigation, supra, 380 F.Supp. at 795. The Panel also ruled, inter alia, that transfer would have the "salutary effect of having all discovery relevant to the validity issue supervised by one judge so that an informed decision on the merits can be made and at a substantial savings of judicial time and resources." Id. In October, 1975, the Panel issued its second opinion in this docket. In re Molinaro/Catanzaro Patent Litigation, 402 F.Supp. 1404 (Jud.Pan.Mult.Lit.1975). At that time the Panel vacated its orders conditionally 968 transferring four tag-along actions in this docket to the Southern District of New York and remanded all actions previously transferred to the Southern District of New York to their transferor districts. The Panel action followed the entry of an order by Judge Metzner in which he formally advised the Panel of the completion of common discovery proceedings and suggested that the Panel remand all remaining actions. Id. at 1406. B. The Present Motion Before the Panel The Pennsylvania action (Hart) presently before the Panel was brought in August, 1972 by Molinaro and Catanzaro against Hart Electronics Corp. of Scranton (Hart). Plaintiffs allege that the defendant sold equipment, manufactured by Electra Corporation (Electra),[2] Unimetrics, Inc. (Unimetrics) and Regency Electronics, Inc. (Regency), which infringed upon the station-sampling radio patent. Plaintiffs seek a declaration of patent validity, injunctive relief and damages. On July 5, 1973, the claims in Hart pertaining to the receivers manufactured by Electra were severed and consolidated with an action (Penney) brought by Molinaro and Catanzaro in the Middle District of Pennsylvania against J.C. Penney Co., Inc., another retailer of Electra receivers.[3] The Eastern District of New York action (Sonar) was brought in June, 1972 by Molinaro and Catanzaro against Sonar Radio Corporation (Sonar). Plaintiffs allege that Sonar Auto-Scan Receivers manufactured and sold by Sonar infringe the station-sampling radio patent. As in Hart, plaintiffs seek a declaration of patent validity, injunctive relief and damages. Both Hart and Sonar were included in the actions transferred by the Panel to the Southern District of New York in 1974 and remanded to their transferor districts by the Panel in 1975. The Southern District of New York action (Sears) was brought by Molinaro and Catanzaro against Sears, Roebuck and Company (Sears) in June 1976. The complaint in this action alleges infringement of the station-sampling radio patent in connection with sales made by Sears of receivers manufactured by Regency. Sears, joined by Sonar, moves the Panel, pursuant to 28 U.S.C. § 1407, to transfer Hart, Sonar and Sears to the District of Delaware for coordinated or consolidated pretrial proceedings before Judge Stapleton.[4] Hart opposes inclusion in centralized proceedings of the Electra-based claims that have been severed in Hart and have been consolidated with Penney, but otherwise Hart joins in Sears's motion. Catanzaro opposes transfer. II. DISPOSITION BY THE PANEL We conclude that transfer under Section 1407 would not necessarily serve the convenience of the parties and witnesses or promote the just and efficient conduct of this litigation and, accordingly, we deny transfer. Sears states that both Sears and Hart involve allegations of infringement on the station-sampling radio patent by models of radios manufactured by Regency. Sears further states that it believes the AutoScan Receivers at issue in Sonar are related to the Regency products. Centralization under Section 1407 is thus necessary, Sears urges, in order to prevent duplication of discovery on the infringement issue common to all these actions. 969 We find these arguments unpersuasive. Only a minimal number of actions are involved here. Two of the three actions are well advanced and have already benefited from participation in coordinated or consolidated pretrial proceedings under Section 1407. No party before us has advocated that any discovery remains to be accomplished on the central issue of patent validity. At best, the proponents of transfer have suggested that transfer is justified because common factual questions exist among the actions on the issues of infringement upon the station-sampling radio patent. But there has been no adequate demonstration to the Panel that the infringement issue in Sonar, involving Auto-Scan Receivers, shares factual questions with the infringement issues in Sears and Hart, involving Regency products. Even assuming, however, that the three actions raise common questions of fact regarding the infringement issues, we are not convinced that those questions alone are sufficiently complex or required such time-consuming discovery as to justify transfer under Section 1407, especially in light of the advanced status of Hart and Sonar. See In re Scotch Whiskey Antitrust Litigation, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit.1969). We observe that suitable alternatives to Section 1407 transfer are available to all parties in the actions before us. Any party could ask the judge assigned to a particular action to issue an order to show cause why the discovery already completed in any related action should not be made applicable to the former action. See In re Raymond Lee Organization, Inc. Securities Litigation, 446 F.Supp. 1266, 1268 (Jud.Pan. Mult.Lit.1978); Manual for Complex Litigation, Parts I and II, §§ 3.11 (rev.ed.1977). Or the parties simply could stipulate that that discovery could be used in a particular action. Additionally, consultation and cooperation among the three courts, if deemed appropriate by those courts, coupled with the cooperation of the parties, would minimize the possibility of conflicting pretrial rulings. See In re Raymond Lee Organization, Inc. Securities Litigation, supra, 446 F.Supp. at 1268. IT IS THEREFORE ORDERED that the motion to transfer the actions listed on the following Schedule A be, and the same hereby is, DENIED. DOCKET NO. 170 SCHEDULE A Eastern District of New York Civil Action No. Edward T. Molinaro, et al. v. Sonar 72C882 Radio Corp. Southern District of New York Edward T. Molinaro, et al. v. Sears 76-Civ-2582 Roebuck & Co. Middle District of Pennsylvania Edward T. Molinaro, et al. v. Hart 72-250 Electronics Corp. of Scranton NOTES [*] Judges Weinfeld, Robson and Caffrey did not participate in the decision of this matter. [1] This patent, No. 2,906,875, has been further described in an opinion by the Honorable Walter K. Stapleton as follows: The subject matter of this patent is a type of signal-seeking receiver. Signal-seeking receivers, as the term is broadly used, are devices which scan a frequency spectrum in search of a signal and stop when a signal being broadcast is encountered. . . . An example of such a device . . would be an automobile radio which automatically tunes from station-to-station, stopping long enough on each to allow the driver to determine whether he wants to listen to the program being presented, and containing a mechanism (a switch, e. g.,) whereby the driver could stop the tuning at a station whose programming he desires to hear. Catanzaro v. Masco Corp., 423 F.Supp. 415, 417 (D.Del.1976). [2] Electra Corporation is now Electra Co., division of Masco Corp. [3] Proceedings in this consolidated action have been stayed pending the resolution of an appeal by Catanzaro from the decision of Judge Stapleton in a related action granting Masco Corp.'s (the manufacturer of Electra receivers) motion for summary judgment of non-infringement. Catanzaro v. Masco Corp., 423 F.Supp. 415 (D.Del.1976). The Court of Appeals for the Third Circuit affirmed the district court's ruling in an unpublished per curiam opinion issued on May 1, 1978. On November 27, 1978, the United States Supreme Court denied a petition for a writ of certiorari that had been filed by Catanzaro following the Third Circuit's ruling. [4] Judge Stapleton, who normally sits in the District of Delaware, is assigned Hart and is sitting in the Middle District of Pennsylvania by designation pursuant to 28 U.S.C. § 292(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520207/	587 S.W.2d 115 (1978) Aburey Lewis JONES, Appellant, v. The STATE of Texas, Appellee. No. 55823. Court of Criminal Appeals of Texas, Panel No. 3. September 20, 1978. On Rehearing October 10, 1979. 116 Jack Hampton, Dallas, for appellant. Henry Wade, Dist. Atty., Steve J. Wilensky and John D. Ovard, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State. Before DOUGLAS, ROBERTS and DALLY, JJ. OPINION DALLY, Judge. This is an appeal from a conviction for burglary of a habitation with the intent to commit theft; punishment is imprisonment for life. Appellant urges two grounds of error. Because evidence of an extraneous offense was improperly admitted, the judgment will be reversed. The complainant, Terry Doyle, testified that at approximately 9:00 p. m. on February 13, 1975, she was attacked by appellant 117 in her apartment in Dallas. She resisted, and in the course of the ensuing struggle appellant tore off her robe and dragged her onto the balcony, where a neighbor came to her aid. Appellant escaped by jumping over the balcony, but he was seen entering a nearby apartment where he subsequently was arrested. As part of its case in chief the State introduced the testimony of D______ D______. She testified that at approximately 7:30 a. m. on February 10, three days before the instant offense, appellant broke down the door of her apartment in Dallas and forced her, by use of a pistol, to cover her head with pillow cases and to disrobe. When she was slow in obeying his commands, appellant hit her in the head with the pistol. He then raped her. Before departing, appellant took her husband's class ring, a camera, and a bracelet. Appellant timely objected to D______ D______'s testimony on the ground that it was "not relevant to anything in this proceeding" and continued to object during the time the witness testified. After the prosecutor promised that he would "make it relevant," the court overruled appellant's objection. When D______ D______ had finished testifying, the court inquired, outside the presence of the jury, as to the relevance of her testimony. The prosecutor stated that it "shows his intent to take property through an attack of a woman." Appellant subsequently denied the commission of both the burglary for which he was on trial and the rape of D______ D______ and theft of her property, and testified that he was in his apartment at the time of the instant offense. Evidence of other unrelated offenses is not generally admissible, since a defendant may not be tried for some collateral crime or for being a criminal generally. The reasons for this rule have been stated in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App. 1972): "Limitations on the admissibility of evidence of an accused's prior criminal conduct are imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him." We cannot accept the State's contention that evidence of the extraneous offense of rape was admissible to show appellant's intent. The indictment alleged that appellant entered the complainant's habitation "with the intent to exercise control over property... and with the intent to deprive the owner of said property ..." The State having alleged that appellant entered the habitation with the intent to commit theft, evidence of an unrelated offense of rape was of no probative value in establishing that intent. Moreover, it has been held that where intent can be inferred from the act itself, evidence of extraneous offenses is not admissible. Riles v. State, 557 S.W.2d 95 (Tex.Cr.App.1977); Albrecht v. State, supra. It is presumed that an entry made without consent in the nighttime is made with the intent to commit theft. Moss v. State, 574 S.W.2d 542 (1978); Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976). D______ D______'s testimony should not have been admitted on the issue of appellant's intent. Evidence of the commission of other offenses by the accused may be admissible to establish his identity, motive or system. Albrecht v. State, supra; Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975). Evidence that would also prove a separate offense is admissible on the issue of identity only if (1) identity is a controverted issue and (2) there are distinguishing characteristics common to both the extraneous offense and the offense for which the accused is on trial. E. g., Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1974); Lee v. State, 496 S.W.2d 616 (Tex.Cr.App.1973); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972). A defendant's denial of the commission of the crime and his reliance on the defense of alibi may raise the issue of identity. Collins 118 v. State, 548 S.W.2d 368 (Tex.Cr.App.1976); Vaughn v. State, 530 S.W.2d 558 (Tex.Cr. App.1975); Lee v. State, supra. Since in the case at bar appellant denied that he committed the offense and offered an alibi defense, identity is a controverted issue. In admitting evidence of the unrelated incident, however, the court should have excluded evidence of the rape. Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974) involved a prosecution for being an accomplice to a robbery by assault in which tape recordings of conversations involving extraneous offenses were admitted in evidence. This Court reasoned as follows: "The ultimate question becomes one of what extraneous offenses were admissible to refute the defense of duress. The recorded conversations between Haas and appellant reveal that appellant was involved in other robberies and burglaries around the State, ranging from Lubbock to McAllen. These offenses were certainly germane to the refutation of appellant's claim that he was coerced into participation in the robbery for which he was being tried.... "A more difficult question is raised with regard to admission of those portions of the conversations in which appellant referred to `joints' and `uppers.' We fail to see what relevancy these extraneous offenses, transactions or statements had to defeating the defense of duress. The fact that some extraneous offenses are admissible does not mean that all extraneous offenses are admissible. Extreme caution should be used to insure that the extraneous offenses admitted pertain to the particular exception by which such offenses have become admissible and to avoid trying a defendant as a criminal generally. Introduction of extraneous offenses unrelated to the offense on trial in an attempt to prejudice an accused will not be countenanced." Evidence of the rape of D______ D______ was not so intertwined with the theft that it was necessary to admit evidence of the rape; however, if it had been so intertwined, no evidence of either offense should have been admitted. An examination of the following argument by the prosecutor at the guilt-innocence stage of the trial leads to the almost inescapable conclusion that appellant was in reality being tried for the offense of rape, rather than that of burglary, with which he was charged: "[H]e [the complainant's neighbor] saved her, I think, from the degradation that the other girl has testified to... * * * * * "[T]his defendant, you know, really what happened to him is he got away with that other rape ... * * * * * * "Well, the young lady D______ D______ told you that he had raped her earlier, and he was free, wasn't he? * * * * * * "[Y]ou really didn't have the personal, practical experience of, say, seeing rape cases, or anything else except what you read or hear in the news media, or whatever, unless you have had the unfortunate circumstances to be the victim, or involved in something, in some manner in that regard. A devious mind, that attacks women, they don't always do things in a logical manner. * * * * * * "[B]ecause they are of that character, they like to degrade and attack women, they will keep doing it and they eventually will get caught, and that is what happened to the defendant in this case, didn't it? ... Now, he took a few items from her that didn't amount to much of value. What is the reason for that? Because a rapist kind of likes a little souvenir or memento of his offense from the victim ... [I]t is difficult to understand the mind of a criminal, but a rapist in particular ... his intentions both in our opinion to rape and to commit theft ..." (Emphasis added.) 119 During argument at the punishment phase of the trial, the prosecutor made the following statement: "[H]e is a burglar and a rapist, and I don't know what else you could say about him." (Emphasis added.) In light of the maximum sentence of imprisonment for life which was assessed, we cannot say that admission in evidence of the extraneous offense of rape was harmless error. The judgment is reversed and the cause remanded. DOUGLAS, J., dissents. Before the court en banc. OPINION ON STATE'S MOTION FOR REHEARING TOM G. DAVIS, Judge. Appeal is taken from a conviction for burglary of a habitation. Punishment was assessed at life. On original submission, the panel reversed appellant's conviction after concluding that evidence of an extraneous offense should not have been admitted. Over objection, the State was allowed to prove during its case in chief that three days prior to the instant offense, appellant broke into the apartment of D______ D______ in Dallas. D______ D______ testified that once he was in her apartment, appellant raped her and took several items of personal property. At trial, the State maintained that the extraneous offense was admissible on the issue of appellant's intent to commit theft in the instant offense. Appellant's intent to commit theft was presumed after the complainant testified that appellant entered her locked apartment without her consent in the nighttime. See, Clark v. State, Tex.Cr.App., 543 S.W.2d 125; Finch v. State, Tex.Civ.App., 506 S.W.2d 749; Garcia v. State, Tex.Cr. App., 502 S.W.2d 718. Such intent being presumed from the act itself, the extraneous offense was not admissible on this issue. See, Riles v. State, Tex.Cr.App., 557 S.W.2d 95. The State maintains that evidence of the extraneous offense was admissible to refute appellant's alibi defense. Terry Doyle positively identified appellant as the individual who had broken into her apartment and dragged her onto the balcony on the occasion in question. She testified that she struggled with appellant "maybe fifteen minutes, I guess" before a neighbor came to her aid and appellant escaped by jumping over the balcony. Doyle further related that the door to her apartment was locked and she did not know how appellant gained entry. A neighbor, Charles Pierce, testified that after hearing screams he went to Doyle's apartment and struggled with appellant until he escaped. Neither witness' testimony was impeached on cross-examination. The State then presented evidence of the extraneous burglary, theft, and rape of D______ D______. At a point following the presentation of evidence of the extraneous offense appellant testified that he was asleep in his apartment at the time of the burglary and attack on Doyle. It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Hines v. State, Tex.Cr.App., 571 S.W.2d 322; Cameron v. State, Tex.Cr.App., 530 S.W.2d 841; Haliburton v. State, Tex.Cr. App., 528 S.W.2d 216. One of the exceptions we have recognized to this general prohibition against the use of extraneous offenses is that such evidence is admissible to refute a defensive theory raised by the accused. Buckner v. State, Tex.Cr.App., 571 S.W.2d 519; Albrecht v. State, Tex.Cr. App., 486 S.W.2d 97. When the appellant raises the defensive theory of alibi, he places his identity in issue. Mitchell v. State, Tex.Cr.App., 503 S.W.2d 562. Once the issue of identity has been raised, evidence of an extraneous offense is admissible to prove identity only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. Buckner v. State, supra; Ransom v. State, Tex.Cr. 120 App., 503 S.W.2d 810. We have nevertheless held that an extraneous offense may be admissible before the defensive theory of alibi is raised if, identity has only been proven circumstantially, or, if the State's only identifying witness is impeached on cross-examination as to a material detail of his identification of the accused. See, Jones v. State, Tex.Cr.App., 568 S.W.2d 847; Redd v. State, Tex.Cr.App., 522 S.W.2d 890. In the instant case, it is clear that the State was premature in its effort to rebut appellant's defense of alibi. The State had produced positive identification by two witnesses that appellant was the perpetrator of the offense in question. This testimony was unimpeached on cross-examination. The State nevertheless proceeded to introduce evidence of the extraneous burglary, theft, and rape of D______ D______ prior to the defensive theory of alibi being raised. We have previously held that the erroneous premature receipt of evidence of an extraneous offense may be rendered harmless based upon the subsequent actions of the defendant at trial. See, Flores v. State, Tex.Cr.App., 209 S.W.2d 168; Shannon v. State, Tex.Cr.App., 59 S.W.2d 142; Gregory v. State, 92 Tex.Cr.R. 574, 244 S.W. 615. Thus, in Vessels v. State, Tex.Cr.App., 467 S.W.2d 259, we held that when no question of identity was presented, error, if any, in the introduction of two extraneous offenses, was rendered harmless when the defendant subsequently presented an alibi defense. Likewise, we conclude that in the instant case, appellant's alibi defense rendered the extraneous offense involving D______ D______ both material and relevant to the question of identity. We find that error, if any, in the premature offer of the evidence was rendered harmless in light of appellant's testimony of alibi. We further conclude that there are distinguishing characteristics common to both the extraneous offense and the offense for which appellant was convicted. Both offenses took place in the Oak Cliff section of Dallas within three days of each other. In both cases, the 26-year-old victims were alone in their apartments at the time of the entry and assault. Both victims had various items of clothing removed by the assailant, and in both cases, the perpetrator attempted to conceal his identity by covering his face either with a scarf or stocking cap. Both the instant offense and extraneous offense would be classified as a burglary of a habitation under V.T.C.A. Penal Code, Sec. 30.02(a)(1). In discussing Sec. 30.02, supra, the Practice Commentary notes: "The central elements of the offense continue to be entry or concealment in a building with intent to commit a felony or theft." This Court will not indulge in speculation as to what appellant's intent was at the time he attacked Doyle and disrobed her in her apartment. However, we cannot conclude that the fact that the instant offense was interrupted by Doyle's neighbor rendered the uninterrupted offense involving D______ D______ inadmissible. We conclude that the extraneous offense was germane to the refutation of appellant's alibi defense. The details of the extraneous offense were admissible to show the common characteristics of both offenses. We find no reversible error in the admission of the extraneous offense. Appellant also challenges the sufficiency of the evidence to support the conviction. This argument appears to be bottomed on the appellant's theory that the State's case would have been "much stronger had the indictment alleged an intent to commit the offense of rape." In Clark v. State, supra, we said, "... it is well settled that the act of breaking and entering a building at nighttime raises the presumption that the act was done with the intent to commit theft [numerous citations omitted]." The fact that the victim's robe was removed in the course of the struggle which ensued after appellant entered the victim's apartment will not defeat this presumption. We find the evidence sufficient to support the conviction. The State's Motion for Rehearing is granted and the judgment is affirmed. *121 ROBERTS, PHILLIPS and DALLY, JJ., dissent for the reasons stated in the opinion on original submission. CLINTON, J., dissents.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520170/	587 S.W.2d 630 (1979) STATE of Missouri, Plaintiff-Respondent, v. David Lee SEMPSROTT, Defendant-Appellant. No. 40292. Missouri Court of Appeals, Eastern District, Division One. September 11, 1979. 631 632 Whitney & Burnet, James W. Whitney, Clayton, for defendant-appellant. John F. White, Asst. Pros. Atty., Clayton, John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Paul Robert Otto, Chief Counsel, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent. PUDLOWSKI, Judge. Defendant appeals from a jury conviction of two counts of murder in the first degree and one count of murder in the second degree. The court, finding the Second Offender Act applicable, assessed punishment to be life imprisonment for each of the offenses. Defendant does not contest the substantiality of the evidence in supporting the verdict and judgment. Consequently we shall only generally state the evidence introduced. The evidence shows that defendant, David Lee Sempsrott, abused a variety of drugs for five years prior to conviction in the immediate action. Early in this period of drug abuse defendant befriended Donald Chronister. These two men developed a close friendship which centered around drugs. Usually, one of these two men would secure a quantity of marijuana, tetrahydracannabinol (THC, an artificial derivative of marijuana), lysergic acid diethylamide (LSD), or amphetamines and share it with or sell it to the other. It was not uncommon for these two men to ingest a large amount of these drugs, or any other narcotic they could find, on a daily basis. During the evening of January 10, 1977, defendant borrowed a car and drove to Troy, Missouri, where his friend John Arnell lived. Before departing defendant smoked a number of marijuana cigarettes and ingested a quantity of THC. Upon arriving at the Arnell residence defendant asked John if he would sell him a gun. Mr. Arnell, who lived with his wife and son, proceeded with defendant to a bedroom where they could speak in private. As Arnell passed defendant, on the way to the bedroom, defendant hit him on the head with a .22 caliber pistol. Apparently, defendant concealed the weapon until he made the assault. Defendant bought the weapon the day before for $35 from a man he met in the parking lot of a fast food restaurant. Arnell, who was heavier and larger than defendant, responded to defendant's blow by knocking the gun out of defendant's hand. Arnell then seized the gun and unloaded the chamber. Defendant's violent conduct was neither provoked nor the product of ill feeling. Immediately following the incident defendant told John he was just playing, he had dropped the gun and that he had not intended to strike his friend. At trial defendant could offer no explanation for his conduct. John Arnell described defendant as being "messed up on dope" and having a wild look on his face immediately following the incident. After the defendant became somewhat calm the two men moved into the kitchen where they conversed, played cards and drank coffee. Eventually Arnell returned the unloaded gun to the defendant. At around 10:45 p. m., the defendant departed in the borrowed automobile. The defendant drove from the Arnell residence to Overland, where his friend Donald Chronister lived. Mr. Chronister shared an apartment with Mary Ann Blair and with Mary Ann's four year old daughter from a previous marriage, Angela Blair. Defendant arrived at about 1:00 a. m. Although Chronister was somewhat annoyed by defendant's late night visit, Chronister admitted defendant. The defendant entered the 633 apartment with the pistol, now reloaded, hidden under his coat. Chronister invited defendant to take a seat at the kitchen table. The two men began to play cards and smoke marijuana. After playing a few hands Chronister rose to get two cold drinks from the refrigerator. The defendant followed Chronister. As Chroinster neared the refrigerator the defendant struck him in the back of the head with the barrel of the pistol. When Chronister turned around defendant took a step back and shot him in the head and chest. Upon hearing the gun shots Mary Ann Blair, who had been in the master bedroom preparing to go to sleep, ran into the kitchen. Defendant calmly told Mary Ann that he had shot Donald and that she and her daughter should be quiet. Defendant then instructed Mary Ann to gag and tie Angela. Ms. Blair returned to the master bedroom and bound her daughter with items of underclothing. Mary Ann was then ordered into the livingroom where she was similarly tied with underclothing. After both Mary Ann and Angela were securely bound the defendant took a seat on the livingroom couch. Mary Ann, wearing only a robe and nightgown, lay directly in front of where defendant sat. At some point defendant untied Mary Ann and ordered her to remove her robe. After defendant retied the woman he cut away her nightgown with a pair of scissors. At trial defendant explained he removed Mary Ann's clothing because if she were to loosen her bonds she would be less likely to escape. Mary Ann now lay naked on the livingroom floor. According to his own testimony, defendant sat on the couch for thirty-five to forty minutes. He then stood up, walked to the kitchen, put on a pair of gloves and picked up a large knife. Defendant walked back into the livingroom and stabbed Mary Ann thirteen times. During his attack Mary Ann freed her hands and tried to resist. Defendant responded by smashing the butt of the gun's handle to her forehead. When defendant was sure Mary Ann was dead he went into the bedroom where Angela lay asleep on her mother's bed. Defendant lifted the child from the bed and placed her on the floor. He then stabbed Angela in the throat and strangled her until dead. After defendant finished he returned to the livingroom couch. Defendant sat there for thirty to forty-five minutes before he decided to leave the apartment. Prior to departing defendant collected whatever incriminating evidence he could find, including the gun, Mary Ann's robe and nightgown, the ashtrays he touched while smoking and the knife. Defendant also seized the watch from Chronister's wrist, the wallet from Chronister's back pocket and an unemployment check for $85 issued to Chronister. Defendant left the apartment carrying the above items, at approximately 3:00 a. m., January 11, 1977. Defendant's first contention is that the trial court erred in admitting into evidence State's Exhibits Numbers 6, 7 and 8, which were photographs of the victims. These photographs, which show the victims' condition in gruesome detail, were taken some twenty hours after the murders had been committed. State's Exhibit Number 6 shows Donald Chronister with blood on his head and hands, slouched against the kitchen wall. State's Exhibit Number 7 illustrates Mary Ann Blair laying naked on the livingroom floor. Mary Ann's face, hands and upper torso are smeared with blood as is the carpeted floor on which she rests. Angela Blair is shown in State's Exhibit Number 8. A panty hose stocking is wrapped around Angela's bloody neck. Defendant argues that these photographs "did not throw any light on an issue before the jury," and the "sole purpose of producing the photographs was to inflame the jury" and that "non-prejudicial evidence had previously been admitted which made the photographs unnecessary." We do not agree. The admissibility of photographs of dead bodies, a form of demonstrative evidence, lies within the sound discretion of the trial court. State v. Robinson, 328 S.W.2d 667 (Mo.1959); State v. McClain, 536 S.W.2d 45 (Mo.App.1976); State v. Dodson, 556 S.W.2d 938 (Mo.App.1977). Such evidence is admissible when its tendency to 634 prove a fact in issue outweighs its prejudicial effect. State v. Dodson, supra, at 947. Thus, when a defendant pleads not guilty to charges of murder in the first degree photographs are admissible if they: connect the accused with the crime, prove the identity of the deceased, show the position of the body, depict the location and nature of the wounds, tend to show the state of mind of the defendant, corroborate, explain or clarify the testimony of a witness or refute a defense unless the prejudicial effect is so great as to outweigh any possible probative values. State v. Jones, 515 S.W.2d 504 (Mo. 1974); State v. Jackson, 499 S.W.2d 467 (Mo.1973); State v. Clark, 494 S.W.2d 26 (Mo.1973); State v. Stevens, 467 S.W.2d 10 (Mo.1971); State v. Floyd, 360 S.W.2d 630 (Mo.1962); State v. McDaniel, 336 Mo. 656, 80 S.W.2d 185 (1935). Photographs are not made inadmissible because the content of the photo, the victim and scene of the crime, are described and illustrated by other evidence. To the contrary it is well settled that photographs are admissible when they enable the jury to better understand the facts. State v. Thresher, 350 S.W.2d 1 (Mo. 1961); State v. Edwards, 435 S.W.2d 1 (Mo. 1968). Nor are photographs with probative value rendered inadmissible solely because they present a gruesome sight. State v. Moore, 303 S.W.2d 60 (Mo.1957). "If photographic views are shocking, when presenting an accurate picture, it is because the crime is of that sort, whether described in words or pictures." State v. Stevens, supra, at 24. The trial court did not abuse its discretion in admitting the photographs of the victims, State's Exhibits 6, 7 and 8. All three of the pictures identify the victims, show the position of the bodies as they were left by defendant, and corroborate, explain and clarify the testimony of witnesses, including the defendant. Further, defendant's primary defense was that he did not form the intent to murder. In ascertaining the existence of the requisite intent the jury could consider all the circumstances surrounding the incident out of which the charge arose. State v. Woody, 406 S.W.2d 659, 661-662 (Mo.1966). The photos help establish that defendant acted with the requisite intent because they show the victims condition following the event, the nature and location of the wounds and the immediate area in which the murders transpired. Defendant's second contention is that the trial court erred by refusing to admit into evidence a letter written by defendant to Janet Chronister, sister of victim Donald Chronister. The evidence shows the letter was received by Ms. Chronister with a postmark of August 11, 1977. In the letter defendant expressed remorse for his actions and his inability to explain what happened the night of the murder. Defendant argues that the letter should have been admitted to prove his state of mind at the time of the incident. We do not agree. Defendant's letter to Janet Chronister contained self-serving statements and was properly excluded. Declarations in defendant's own interest, not shown to have been made as part of the res gestae are properly excluded as self-serving. State v. Gooch, 420 S.W.2d 283, 289 (Mo.1967). In order for defendant's statements in the letter to be part of the res gestae they must be the apparently spontaneous result of the occurrence operating upon his perceptive senses. State v. Stallings, 334 Mo. 1, 64 S.W.2d 643 (1933). Declarations that are the product of reasoning from collateral facts are not part of the res gestae. State v. O'Neal, 436 S.W.2d 241, 244 (Mo.1968). The element of spontaneity is absent here. The record in no way indicates that defendant's letter was the spontaneous result of the murders operating upon his senses. To the contrary defendant wrote Janet Chronister seven months after the murders had been committed to apologize for killing her brother. The murders and the statements did not form one continuous transaction and the trial court committed no error in excluding this letter. Defendant's third contention is that the trial court erred by prohibiting defense counsel from questioning the venire panel, during voir dire examination, concerning their willingness to follow the law as it 635 related to first degree murder. The record indicates that defense counsel informed the court that he intended to ask the members of the venire panel whether they could follow the law by assessing life imprisonment without parole for a minimum of 50 years, if they found defendant guilty of first degree murder. The prosecutor objected to this line of inquiry. The court responded that defense counsel could point out to the panel that murder in the first degree is punishable by a sentence of life imprisonment but no reference could be made to the eligibility of parole. In sum, defendant argues that he should have been able to inform the jury that he faced a minimum of 50 years imprisonment if convicted of first degree murder and sentenced to life imprisonment. We do not agree. It is well settled that the examination of prospective jurors as to their ability to render an impartial verdict is conducted under the supervision of the trial court. State v. Johnson, 558 S.W.2d 284, 286 (Mo. App.1977). The trial court is vested with broad discretion in controlling this examination process and the appellate court will not interfere unless the record discloses a manifest abuse of that discretion. State v. Mudgett, 531 S.W.2d 275, 279 (Mo. banc 1975). Although there is no case precisely on point we are unable to hold that the trial court abused its discretion in prohibiting defense counsel from apprising the venire panel that a person found guilty of murder in the first degree and sentenced to life imprisonment would not be eligible for parole for a minimum of 50 years. In so holding we are guided by the rule that prohibits a prosecutor from calling the jury's attention, in oral argument, to the possibility that a defendant may be released from imprisonment by parole as a reason for imposing a greater penalty. State v. Kaempfer, 342 Mo. 1007, 119 S.W.2d 294, 296 (1938). Likewise, we are directed by the rules which forbid the court from instructing that the sentence imposed by the jury may be lessened or cannot be diminished by the executive branch. State v. Rollins, 449 S.W.2d 585, 591 (Mo.1978); State v. Cornett, 381 S.W.2d 878, 881 (Mo. banc 1964). Since a defendant may not successfully offer an instruction concerning the availability of parole we think it reasonable that he be barred from inquiry of prospective jurors whether they could impose a life sentence knowing that parole would be unavailable for a minimum of 50 years. "The question of future clemency is extraneous to a proper determination of issues of guilt and punishment by the jury. It should be of no concern to them." State v. Rollins, supra, at 591. Moreover, the jury, after it found the defendant guilty, did not assess punishment in this case. The defendant was charged as a second offender. Therefore, the court, pursuant to the terms of § 556.280, RSMo. 1969, sentenced defendant. Because the jury only determined defendant's guilt no prejudicial error could have been committed by prohibiting defense counsel from inquiry of the jurors' ability to assess punishment. Defendant's final assignment of error concerns the State's use of Dr. Joseph F. Shuman as a witness. The record shows that defendant called Dr. Robert B. Deitchman as an expert witness. Dr. Deitchman's testimony served as the basis for defendant's allegation that he did not form the requisite intent to commit first degree murder due to his diminished mental capacity. To contradict Dr. Deitchman's testimony the prosecutor called Dr. Shuman, a court appointed psychiatrist who had examined defendant, as a rebuttal witness. Defendant argues that Dr. Shuman's testimony should have been excluded because the prosecutor failed to disclose his intention to call Dr. Shuman as required by Rule 25.32. Whatever the merits of defendant's contention may be, we are unable to review this issue. There is nothing in the record indicating either that defendant made a written request for discovery, or the state's response thereto. Defense counsel baldly asserts that he "properly made a request for discovery in compliance with Supreme Court Rule 25.32." But the transcript is absent of such a motion. Further the trial court made specific reference to defendant's failure to file a written request 636 for discovery with the court. "Rule 25.32(a)(1) requires that the state shall, on written request of the defendant, disclose the `names and last known addresses of persons whom the state intends to call as witnesses . . ..'" (Emphasis added). State v. Curtis, 544 S.W.2d 580, 582 (Mo. banc 1976). Since defendant failed to make a written request for discovery the state's duty to disclose did not arise. State v. Curtis, supra. Further, if such a motion was in fact made there is nothing in the transcript indicating the ruling of the trial court. Because defendant failed to prepare and file a record incorporating the basis for the alleged error, there is nothing for this court to review. State v. McCoy, 559 S.W.2d 298, 300 (Mo.App.1977). Judgment affirmed. SNYDER, P. J., and WEIER, C. J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520172/	306 Md. 792 (1986) 511 A.2d 512 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. PHILIP S. MARANO. Misc. Docket (Subtitle BV) No. 19, September Term, 1985. Court of Appeals of Maryland. July 15, 1986. Melvin Hirshman, Bar Counsel and Glenn M. Grossman, Asst. Bar Counsel for the Attorney Grievance Com'n of Maryland, for Petitioner. No Appearance on Behalf of Respondent. Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ. SMITH, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition, pursuant to Maryland Rule BV9, seeking disciplinary action against Philip S. Marano, a member of the Maryland Bar since November 9, 1956. Bar Counsel charged violations of Disciplinary Rules 1-102(A)(1), (3), (4), (5) and (6); 5-104(A); 6-101(A)(1), (2) and (3); 7-101(A)(1), (2) and (3); 9-102(A)(1), (2) and (B)(1), (3) and (4).[1] He also was charged with violation of Maryland Code (1957, 1981 Repl.Vol., 1985 Cum.Supp.) Art. 10, § 44.[2] We shall disbar. I Pursuant to Rule BV9 b we referred the matter for hearing to one of the judges of the Circuit Court for Baltimore City to make findings of fact and conclusions of law. He has filed a comprehensive report with us in which he states: "FINDINGS OF FACT & CONCLUSIONS OF LAW * * * * * * "The gravamen concerning the Respondent's conduct In the Matter of the Estate of Andrew Melnick involves his handling of funds of the estate. Briefly summarized, an inventory was not filed until some ten (10) months after the estate was opened and listed an asset of $52,500 `in account with Philip S. Marano, various loans, etc.' Subsequent to the Respondent being removed as Personal Representative and a successor appointed he failed to account for his debt, and any transactions between himself and the deceased. "On February 7, 1984 the Orphans' Court of Baltimore City held Mr. Marano in contempt for failure to produce records evincing the debt. There were further uncomplied with orders of the Orphans' Court. However, the debt was in fact ultimately paid plus interest by the Respondent. "It is alleged that the funds to repay the estate were obtained with loans from clients. The Petitioner contends that the clients were never informed of the purpose of the loans." * * * * * * "The initial complaint in BC Docket No. 85-21-4-2 concerns the Respondent's conduct as attorney for the estate of Daniel E. DeBarge. In this matter a Petition for Probate was filed May 10, 1974 in the Orphans' Court for Baltimore City. Despite notices from the Court the Respondent failed to have a list of interested persons, an information report, an inventory nor accounting timely filed. Many of these items not being filed until August, 1984. Broadly stated the Respondent is alleged to have improperly represented the Personal Representative and take the necessary action to close the estate in a timely manner." * * * * * * "Also in the aforementioned complaint, the Respondent is again alleged to have improperly represented the Personal Representative In the Matter of the Estate of Adeline Annarelli who died intestate June 2, 1973. A Petition for Probate was filed August 7, 1973 in the Orphans' Court for Baltimore City. "It is contended that Mr. Marano failed to timely file accountings, and documents necessary to close the estate in a timely manner despite numerous notices from the Court. The First and Final Administration Account was not filed until August, 1984." * * * * * * "Allegations of the same type conduct are the basis for the charge concerning the George E. Banks estate. The decedent passed November 21, 1974 and a Petition for Probate was filed in the Orphans' Court for Baltimore City November 25, 1974. "Accounts and documents necessary to close the estate were not timely filed. The First and Final Administration Account was not filed until August, 1985. "It is contended that this conduct constituted a failure to properly represent the Personal Representative and take necessary steps to close the matter in a timely manner." * * * * * * "In the matters at Bar every opportunity was afforded the Respondent to present evidence to rebut the charges. Additionally, no effort was made to vacate the Order of Default filed December 4, 1985." The trial judge concluded that Marano violated DR 1-102(A)(1), (3), (4), (5), and (6); DR 5-104(A); DR 6-101(A)(1), (2), and (3); DR 7-101(A)(1), (2), and (3), and DR 9-102(A)(1) and (2). II There were no exceptions filed by Bar Counsel or Respondent. Indeed Respondent has failed to appear at all stages of the proceedings to answer these charges. Marano's acts regarding the Melnick estate bear a strong resemblance to those before the Court in Attorney Griev. Comm'n v. Pattison, 292 Md. 599, 441 A.2d 328 (1982), where an attorney purported to loan himself $28,900.00 from an estate. We there said: "So often attorneys for one reason or another find themselves in a position where the flow of cash in their practice is insufficient to meet office overhead, family needs, and the like. Then comes the temptation to dip into funds which have been entrusted to the attorney, with the thought that the money soon can and will be paid back and the hope that no one will be wiser. Often, as here, the peculations grow and grow. It is fundamental that a fiduciary may not make a loan, secured or unsecured (as was this), unto himself." 292 Md. at 607-08, 441 A.2d at 332. The DeBarge, Annarelli and Banks complaints all involve substantial neglect over a ten-year period. Marano was the recipient of a private reprimand in 1976 for failure to file suit on behalf of a client which resulted in the claim being barred by limitations. We suspended him for neglect in Attorney Griev. Comm'n v. Marano, 299 Md. 633, 474 A.2d 1332 (1984).[3] The fact that Marano has not heeded prior admonitions is a serious factor to be taken into consideration in determining sanction. See Md. St. Bar Ass'n v. Phoebus, 276 Md. 353, 347 A.2d 556 (1975). As we said in Pattison and have said repeatedly, absent extenuating circumstances, disbarment is the sanction which should be imposed upon an attorney for converting the funds of his client to his own use. It follows, therefore, that the name of Philip S. Marano shall be stricken from the rolls of those entitled to practice law in this State. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COST OF TRANSCRIPTS, PURSUANT TO MARYLAND RULE BV 15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST PHILIP S. MARANO. NOTES [1] The rules in question state in relevant part: "DR 1-102 Misconduct. (A) A lawyer shall not: (1) Violate a Disciplinary Rule. (2) ... (3) Engage in illegal conduct involving moral turpitude. (4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other conduct that adversely reflects on his fitness to practice law." "DR 5-104 Limiting Business Relations with a Client. (A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." "DR 6-101 Failing to Act Competently. (A) A lawyer shall not: (1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it. (2) Handle a legal matter without preparation adequate in the circumstances. (3) Neglect a legal matter entrusted to him." "DR 7-101 Representing a Client Zealously. (A) A lawyer shall not intentionally: (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. (2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105. (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B)." "DR 9-102 Preserving Identity of Funds and Property of a Client. (A) All funds of clients paid to a lawyer or a law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: (1) Funds reasonably sufficient to pay bank charges may be deposited therein. (2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved. (B) A lawyer shall: (1) Promptly notify a client of the receipt of his funds, securities, or other properties. (2) ... (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them. (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive." [2] Code (1957, 1981 Repl.Vol., 1985 Cum.Supp.) Art. 10, § 44 provides in relevant part: "(a)(1) If any attorney is entrusted with, or receives and accepts, or otherwise holds, deposit moneys or other trust moneys, of whatever kind or nature, such moneys, in the absence of court order to the contrary shall be expeditiously deposited in an account or accounts maintained as a separate account or accounts for funds belonging to others. In no event shall the attorney commingle any such funds with such attorney's funds or use any such funds for any purpose other than the purpose for which they were entrusted to the attorney." * * * * * * "(b) Any attorney wilfully violating the provisions of this section shall be charged with professional misconduct, malpractice, or conduct prejudicial to the administration of justice and shall be proceeded against for reprimand, suspension, or disbarment under any applicable provision of this article or any other law or the Maryland Rules. "(c) Any attorney wilfully violating the provisions of this section, in addition to the penalties set forth in subsection (b) of this section, shall be guilty of a misdemeanor for each such violation and, on conviction thereof, shall be fined not more than five thousand dollars ($5,000) or be imprisoned for not more than five (5) years, or both in the discretion of the court." [3] This decision was filed on May 25, 1984. The DeBarge, Annarelli and Banks estates were opened in 1973 and 1974. Two of them were closed in August 1984, but one was not closed until August 1985.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520173/	587 S.W.2d 733 (1979) Kenneth Walter ADRIAN, Appellant, v. The STATE of Texas, Appellee. No. 57088. Court of Criminal Appeals of Texas, Panel No. 1. October 17, 1979. Richard W. Crews, Jr., Corpus Christi, for appellant. William B. Mobley, Jr., Dist. Atty. and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State. Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ. OPINION W. C. DAVIS, Judge. This is an appeal from a conviction of arson pursuant to V.T.C.A. Penal Code, Sec. 28.02. Punishment was assessed at three years. Appellant's sole ground of error on appeal is that the evidence is insufficient to support the judgment of conviction in that the State failed to establish the corpus delicti of arson, independent of appellant's confession. We agree. 734 The State introduced eight witnesses in its case-in-chief. Iva Carpenter testified that on the afternoon of May 12, 1975, Richard Gaston told her, in the appellant's presence, that he would be gone that night fishing and asked if she would keep an eye on his wife and child. Carpenter testified that at approximately 1:30 a. m. that night, she was awakened by the sound of the appellant's door slamming. At 2:00 a. m., she got out of bed and discovered a ball of fire over the Gaston's trailer. Carpenter said she had been restless and uneasy because of two other fires in the trailer park within the last two months. Carpenter and her husband were fighting the fire when she saw the appellant enter the burning trailer. She did not see him leave, but shortly thereafter saw him in the crowd, smoking a cigarette. About an hour after the fire was out, ambulance attendants arrived, saying they had received a call from a man who had been overcome by smoke. They went to the appellant's trailer where they found him standing at his desk beating on his chest, hollering, "Nobody cares anything about me, they're just going to let me die." Carpenter's son-in-law, William Bender, next testified that he was the owner of the damaged trailer and that he had not given anyone permission to burn it. Janis Gaston testified that she and her son were in the trailer asleep when she awoke and smelled smoke. Shortly thereafter, she heard Iva Carpenter screaming for her. She further testified that the fire appeared to have been started in the garage below the trailer. Richard Gaston testified that the trailer was on fire when he arrived home. The appellant was standing by the garage door and helped Gaston pull a jeep out of the garage. A neighbor testified that she had seen the appellant in the crowd, "leering." Sometime after the fire, a pair of blue jean cut-offs, believed to belong to the appellant, were found on a clothes line. The last three witnesses for the State testified concerning the confession of the appellant. The appellant's confession was admitted into evidence. It stated in pertinent part: "I went outside and walked around, I don't know what time it was, I just walked around, I opened the doors to the garage that had a trailerhouse above it and went into the garage, there was a Jeep inside and I walked to the right side of the Jeep and there was plastic covering at the side of the Jeep, this will be to the right side, hanging from a rafter. Then I lit the plastic on fire with a match and I put the match in my pocket of my cut off jeans. This was all I had on, then I walked out and went back to bed and went to sleep. After a while Jeanette woke me up and told me about a fire that was next to my trailer. I went out and helped some people move a Jeep and motorcycle out of the garage that I had set on fire, then I went up to the trailerhouse that was on fire and grabbed a blanket and wet it under the faucet that was in the kitchen and put the fire out that was burning in the bedroom, then I went outside and went back to my trailer. I had trouble breathing so I went to the Coast Guard pay phone and called the operator and told her I needed an ambulance where there had been a fire next to the Coast Guard station. I went back to my trailerhouse and waited for the ambulance." This was the total sum of the State's case against the appellant. The State did not call any witnesses to testify as to the possible causes of the fire. Apart from the appellant's confession, there is no evidence that the fire was intentionally set. It is well established that the extrajudicial confession alone is insufficient to sustain a conviction. Brown v. State, 576 S.W.2d 36 (Tex.Cr.App.1978); R.C.S. A Juvenile, v. State, 546 S.W.2d 939 (Tex.Civ. App.1977); Smith v. State, 363 S.W.2d 277 (Tex.Cr.App.1963). The confession must be corroborated by evidence that a crime has been committed, i. e., the corpus delicti must be proven. 735 To establish the corpus delicti of arson, the State must show that the house was designedly set on fire by someone. Bussey v. State, 474 S.W.2d 708 (Tex.Cr. App.1972); Zepeda v. State, 139 Tex.Cr.R. 258, 139 S.W.2d 820 (1940). In Miller v. State, 566 S.W.2d 614, 618 (Tex.Cr.App. 1978), the Court stated: "It is clear that the offense of arson still requires that the fire involved be of an incendiary origin. This is implicit in the requirement that the burning be intentional." In the case at hand, there is no question that a fire occurred. However, there is no evidence apart from the appellant's confession that the fire was deliberately set. There is no testimony as to the cause of the fire, nor did the State attempt to negate the possibility that the fire resulted from defective electrical wiring, a defective water heater, spontaneous combustion or any other manner. See Bussey, supra. In Duncan v. State, 109 Tex.Cr.R. 668, 7 S.W.2d 79 (1928), this Court reversed an arson conviction where, apart from the defendant's confession, the only evidence introduced by the State to prove that a crime was committed was the testimony of the city fire marshal, stating that he had examined the premises and could not determine the cause or the origin of the fire. The Court then stated: "Proof that a fire occurred of itself obviously does not prove that the crime of arson has been committed by some one. The record is without any evidence suggesting any connection of appellant with this fire or that such a fire was incendiary except what is contained in the alleged confession of appellant." The State has failed to prove the corpus delicti of arson in that there is no evidence to corroborate the appellant's confession establishing that the fire was caused by a criminal act. Accordingly, the judgment of conviction is reversed and remanded to the trial court with instructions to enter a judgment of acquittal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520175/	211 N.J. Super. 321 (1986) 511 A.2d 1197 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DOUGLAS DAVID CHAPPEE AND GLEN FULLER, DEFENDANTS-APPELLANTS. Superior Court of New Jersey, Appellate Division. Argued June 9, 1986. Decided June 19, 1986. 322 Before Judges MORTON I. GREENBERG, J.H. COLEMAN and LONG. Alan Silber argued the cause for appellant Glen Fuller (Silber & Rubin, attorneys). 323 J. Barry Cocoziello argued the cause for appellant Douglas David Chappee (Podvey, Sachs & Catenacci, attorneys; J. Barry Cocoziello and H. Richard Chattman, on the brief). Raymond S. Gurak, Deputy Attorney General, argued the cause for respondent (W. Cary Edwards, Attorney General, attorney). The opinion of the court was delivered by MORTON I. GREENBERG, P.J.A.D. This matter comes on before this court on appeals by defendants Douglas D. Chappee and Glen S. Fuller from convictions and sentences entered on their pleas of guilty in these criminal cases. We consolidate the appeals for disposition in this opinion. The proceedings started when defendants were indicted in Middlesex County for the following offenses: possession of a controlled dangerous substance, marijuana, N.J.S.A. 24:21-20(a)(4) (count one); possession of a controlled dangerous substance, methaqualone, N.J.S.A. 24:21-20(a)(1) (count two); possession of a controlled dangerous substance, cocaine of which more than 3.5 grams was free base, N.J.S.A. 24:21-20(a)(2) (count three); possession of a controlled dangerous substance with intent to distribute, more than 3.5 grams of free base cocaine, N.J.S.A. 24:21-19(a)(2)[1] and N.J.S.A. 24:21-19(b)(2) (count four); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five). On July 2 and July 9, 1981, defendants moved for admission of counsel pro hac vice, Chappee seeking to have John Van Ness, a Colorado attorney, admitted and Fuller seeking to be represented by Keith Stroup, a member of the District of Columbia bar, and his partner, a Mr. Pritzler, a member of the Illinois bar, partners in a four person multi-state firm. Judge 324 Hamlin denied these motions, noting the difficulties in scheduling cases when out-of-state counsel are involved and the complications their admission could cause. Further, the judge considered that the nature of the case was such that in-state counsel could ably represent defendants. On July 17, 1981 defendants moved (1) to suppress evidence recovered from the trunk of the car in which they were riding when arrested; (2) to dismiss part of the indictment based on an alleged unconstitutionality of the New Jersey statute classifying cocaine as a narcotic; (3) to dismiss the indictment by reason of an underrepresentation of women in the position of grand jury foreperson; (4) to sever count five of the indictment; (5) to dismiss the indictment because it contained multiplicious charges, and (6) for Judge Hamlin to recuse himself from hearing the suppression motion as he issued the warrant for the search. The judge at that time made no ruling on the first three motions but denied the last three. After evidentiary hearings, Judge Hamlin denied defendants' motion to dismiss the indictment based on the allegation there had been discrimination against women in the position of grand jury foreperson on March 8, 1983 and denied the motion to suppress in a written opinion dated August 6, 1983. In denying the motion to dismiss Judge Hamlin pointed out that the duties of a foreperson are ministerial. The motion to dismiss the indictment on the grounds that cocaine was unconstitutionally classified as a narcotic was denied and that issue is not raised on this appeal. Another significant pretrial proceeding related to a plea agreement offered to defendants providing for maximum incarceration of Chappee and Fuller of two years and six years respectively. Fuller accepted the offer immediately but Chappee hesitated. The State rescinded the offer before it was put on the record and before Chappee accepted or rejected it. Defendants subsequently moved to enforce the offer but on April 29, 1983 Judge Muscatello denied their motion. 325 Chappee moved for a severance of his case from Fuller's. While this motion was initially granted, on the State's interlocutory appeal on leave granted we reversed and remanded the matter to the trial court for a hearing, at which the motion was denied. Pursuant to a plea agreement, reserving to defendants the right to appeal from certain of the pretrial orders, on April 10, 1984 defendants pleaded guilty to count four of the indictment. On November 20, 1984, Fuller was sentenced to a term of 20 years and a fine of $25,000 and on March 18, 1985 Chappee was sentenced to a term of seven years and a $5,000 fine. The remaining counts were dismissed. Defendants appeal raising the following issues. Chappee asserts: (1) The consent to search the trunk, sought during custodial interrogation, was invalid under the state and federal constitutions because no Miranda warnings or other advisement of the right to counsel and the consequences of the consent were given. A. Defendants were in custody and subjected to custodial interrogation at the time consent to search was sought. B. The failure to administer Miranda warnings prior to the custodial interrogation in which consent was sought invalidated the purported consent. 1. Miranda warnings must precede a request for consent. 2. Regardless of whether Miranda warnings are per se a prerequisite to a valid consent, where consent is obtained as the tainted and derivative fruit of a Miranda violation, the consent is invalid and the product of the ensuing search must be suppressed. C. Under the New Jersey Constitution, Article I Paragraph 7, a consent during custodial interrogation is valid only if preceded by warnings adequate to insure an effective waiver and relieve the compulsion inherent in custodial interrogation. These must include advisements of the right to counsel and the consequences of consent. (2) The conduct of the hearing on the motion to suppress was prejudicially erroneous, and a remand for a new hearing on the motion is required. A. The preclusion of defendants' proffered expert testimony on the issue of defendant Fuller's lack of capacity in the circumstances to give a voluntary and knowing consent was prejudicially erroneous. B. The judge presiding at the motion to suppress erred in failing to disqualify himself, since he had issued the search warrant after a testimonial hearing at which he passed on the credibility of one of the State's key witnesses and determined one of the central facts at issue on the motion. 326 (3) The State's withdrawal of the plea bargain violated New Jersey law and policy; the State falsely induced Chappee and Fuller to waive their constitutional rights; the precedent will cause plea negotiations to become unworkable. (4) The arbitrary denial of counsel of choice violated defendants' Sixth Amendment rights. (5) Discrimination against women in the selection of grand jury forepersons constitutes a constitutional violation. (6) Denial of Chappee's motion for a severance constituted a prejudicial abuse of discretion. Fuller claims: (1) The consent to search the trunk, sought during custodial interrogation, was invalid under the state and federal constitutions because no Miranda warnings or other advisement of the right to counsel and the consequences of the consent were given. (2) The conduct of the hearing on the motion to suppress was prejudicially erroneous, and a remand for a new hearing on the motion is required. (3) The State's withdrawal of the plea bargain violated New Jersey law and policy; the precedent will cause plea negotiations to become unworkable. A. Informal plea bargains are enforced on several different theories. 1. Introduction: the importance of the plea bargain. 2. Federal courts will enforce a plea bargain in the case of a federal constitutional infraction. 3. Plea bargains must be enforced in cases of partial performance or detrimental reliance. 4. Federal courts enforce plea bargains under their supervisory powers. 5. State courts use their supervisory powers to enforce informal plea bargains and other agreements. B. The New Jersey Constitution, rules, and case law all require that the State be held to a high standard of conduct. 1. The New Jersey Constitution provides greater protection to the individual than does the federal constitution. 2. The New Jersey plea bargain model. C. The State's actions violate the New Jersey rules aimed at fairness and judicial efficiency. 1. The State promised to leave the plea offer open. 2. The State has no `plausible reason' for its change of position. 3. Failure to place the plea on the record does not void the State's commitment. 4. To allow arbitrary withdrawal of a plea offer legitimizes abuse of the plea bargain model. D. Inability to rely on the State makes the plea bargain model unworkable. 1. Defense counsel will be forced to weigh the wrong factors. 2. Reliance is necessary for the plea bargain model to work. 327 (4) The arbitrary denial of counsel of choice violated appellants' Sixth Amendment rights. (5) Discrimination against women in the selection of grand jury forepersons constitutes a constitutional violation. (6) The court's reasons for Fuller's sentence were unsupported by the record; the prosecutor's conduct violated the plea agreement; and the sentence was excessive. A. The court's reasons for imposing the sentence are unsupported by the record. 1. Fuller, a courier, was erroneously sentenced as a principal. a. Substantive error. b. Procedural error. 2. The court's evaluation of aggravating and mitigating factors is unsupported by the record. a. Mitigating factors. 1. Fuller's conduct neither caused nor threatened serious harm. 2. Fuller did not contemplate that his conduct would cause harm. 3. Community service. 4. Circumstances unlikely to recur and unlikely to commit another crime. 5. Likely to respond to probationary treatment. 6. Excessive hardship. 7. Willingness to cooperate with law enforcement authorities. 8. Miscellaneous mitigating factors. b. Aggravating factors. 1. The nature of the offense. 2. Whether the defendant will commit another offense. 3. Organized criminal activity. 4. Deterrence. B. This court should modify Fuller's sentence. C. The prosecutor's conduct violated the terms of the plea agreement. The circumstances giving rise to the arrest and search and seizure, developed at the hearing on the motion to suppress, are not complicated and indeed are quite typical. At approximately 4:30 a.m. on November 14, 1980 State Troopers Raymond Chintal and Guy Madison were on patrol on the New Jersey Turnpike. As they were pulling out of a service area, they observed a Pontiac automobile with Florida license plates and a radar detection device on the front dashboard speeding by. The troopers followed the car, clocking it at 65 miles per hour. The officers pulled the car over and then exited their vehicle with Chintal approaching the driver's side of the Pontiac and 328 Madison approaching the passenger side. At Chintal's request the driver, Chappee, produced his drivers license but he was unable to show a registration for the vehicle. Chappee then woke Fuller, who had been sleeping in the back seat. Fuller leaned over the front seat and unsuccessfully searched in the glove compartment for the registration. Madison then motioned for Fuller to roll down the passenger side window and as he did so Madison smelled marijuana smoke and signalled to Chintal. While Fuller was searching for the registration, Chintal noticed that Chappee seemed "very nervous" with his hand movements being "very flighty." Consequently Chintal requested defendants to exit the vehicle. After he patted Chappee down and directed him to the rear of the car, Chintal shined his flashlight into the interior of the car and observed a partially burnt marijuana cigarette on the mat in front of the driver's seat. Chintal then looked under the driver's seat for weapons and approached Chappee with the "roach." Though he cautioned Chappee that he need not answer, Chintal asked him if the car contained any more marijuana. At about the same time, Fuller was at the rear of the car searching for the registration in an attache case he had carried from the rear seat. Fuller appeared to the officers as "cocky" or arrogant and he was using profanity. While Fuller continued to search for the registration, Chappee paced on the highway shoulder until the officers requested him to sit down. Inasmuch as Fuller's search had not yielded the registration, Chintal asked him if it could be in the trunk. Fuller responded that it might be and, according to Madison, stated he had nothing to hide and would find the registration. Officer Madison retrieved the car keys from the ignition, and as they were handed to Fuller, Chintal advised him that under State v. Johnson[2] he could refuse consent to open the trunk. Fuller, 329 however, consented and when he opened the trunk, Chintal observed several garment bags, a tool box and a canvas bag. According to Chintal, Fuller began to search among the boxes for the registration and as he opened a Hamilton Beach blender box, Chintal saw the corner of a clear plastic bag which he believed contained marijuana. At this point Chintal left the suspects and returned to the patrol car to get a consent to search form. Madison testified that as Fuller searched among the boxes his hand somehow caught the bag Chintal had observed and the bag, which did, in fact, contain marijuana, "popped up, maybe a foot in the air, and it landed back in the trunk and I just picked it up." Madison testified, however, that Chintal was present during this incident and left to get the consent form only after the bag had popped out of the box. Madison stated he later learned from Chintal that Chintal had observed a different plastic bag and had left to retrieve a consent form. In any event, Madison testified that Fuller was "startled" at the sight of the exposed marijuana and stated that friends who had borrowed the car in Florida must have left it in the trunk. Fuller then closed the trunk, handed the keys to Chappee, yelled that they should get out, and the two men ran to the right side of the car. According to Madison, as Fuller slid behind the steering wheel he jumped on top of him. As Chappee was trying to get the keys in the ignition, Officer Chintal arrived and pulled Chappee from the vehicle. After the two tumbled down an embankment, Chintal was able to subdue and handcuff Chappee. Officer Madison restrained and handcuffed Fuller. The suspects were arrested and put in the patrol car. According to Fuller, he and Chappee had been driving for 20 hours from Florida. He had taken a Quaalude 30-40 minutes before he had been stopped and had smoked a half joint of marijuana 10 minutes after taking the Quaalude. After being asked to exit the car he produced what he thought was the registration but which Madison said was only a "dealers tag." Fuller admitted that Chintal, in asking if the car contained 330 other contraband or if the registration could be in the trunk, informed him of his right to consent to a search or refuse consent, and to stop the search at any time. Fuller also testified that Chintal informed him that should the search disclose contraband he and Chappee would be arrested. However, according to Fuller, Madison stated that regardless of whether Fuller consented he would open the trunk. Fuller testified that he did not consent to the search and it was Madison who opened the trunk. According to Fuller, after the trunk was opened he began to move boxes around in the trunk in an effort to show the police there was no contraband in the car, and to avert their attention from a box which contained marijuana. However, Madison began to examine the contents of the trunk, and upon opening one box stated "what's this"? at which time Chintal left for the police car. Fuller stated that Madison then punched his fist through another box and started coming up with a bag of cocaine, and it was then that he and Chappee attempted to escape. After defendants were arrested they were taken to the State Police barracks in New Brunswick and their automobile was impounded. Defendants were given Miranda warnings and Fuller signed a written consent form to search his car, although he sought to invalidate the document by printing a notation indicating the trunk had already been searched. As a result of statements made by Fuller after he received his rights indicating his car contained cocaine, marijuana and a can of mace, Chintal and another trooper obtained a search warrant from Judge Hamlin. In the subsequent search of the trunk of the vehicle, numerous clear plastic bags containing cocaine and approximately one pound of marijuana were found. In the interior of the vehicle the officers found eight suspected Quaaludes, smaller quantities of marijuana and a can of mace. Eventually it was determined that in excess of five pounds of cocaine was recovered. In his written opinion denying defendants' motion to suppress, Judge Hamlin found that the officers had legal grounds 331 for originally stopping the Fuller vehicle, the roach retrieved by Chintal from the front seat was in plain view, defendants received adequate warnings under State v. Johnson and Fuller consented to a search of the trunk. The judge further concluded that the marijuana the officer observed in the trunk was also in plain view after the trunk was opened and, finally, the judge held that the officers had probable cause to search the entire vehicle while detaining defendants on the turnpike regardless of whether valid consent to search was given. Extensive hearings were also held on defendants' motion to dismiss the indictment based on the exclusion of women from the position of grand jury foreperson. At these hearings evidence was developed showing how forepersons are selected and describing their functions. The order of March 8, 1983 denying the motion to dismiss was the product of these hearings. We deal initially with the court's refusal to enforce the plea agreement, and reject defendants' contentions in this regard. In State v. Antieri, 186 N.J. Super. 20, 25 (App.Div. 1982), certif. den. 91 N.J. 546 (1982), we would not accept an argument that the trial court erred in not specifically enforcing a plea agreement which was offered and accepted, but later withdrawn by the State. The defendant's position in Antieri was stronger than defendants' positions here as there the defendant entered his plea of guilty before the prosecutor withdrew from the agreement. Id. at 23. Here the pleas of guilty were not entered on the record before the State withdrew its offer. Finally, we point out that defendants were not prejudiced in asserting any defense by the State's change in position. In any event the plea agreement could not be effective unless approved by the judge. Thus the most relief defendants could obtain on this point would be a remand to ascertain if the judge would accept the agreement. We, of course, may exercise original jurisdiction to complete the determination of the matter. 332 R. 2:10-5. We do not hesitate to say that even if we found that the prosecutor should not have been allowed to withdraw from the agreement instead of remanding to the trial judge to determine if he would accept it, we would exercise original jurisdiction and reject it. We are, after all, in a position as favorable as the trial judge to pass on the reasonableness of the agreement, as all the facts of the case are before us. It is obvious that for the gravity of the offense involving the transportation of massive amounts of cocaine, the offer was far too lenient. Indeed, we are shocked that it could have even been contemplated that defendants could have been given such short sentences for their grave offense. Defendants' argument for relief based on underrepresentation of women as Middlesex County grand jury forepersons is predicated on the fact that while the 52 grand juries selected in Middlesex County between January 1, 1976 and April 29, 1981 were approximately equally divided between men and women, 49 men and three women were selected as forepersons. In passing on this contention we note that clearly there was no intentional discrimination against women. Judge John C. Demos, now deceased but Middlesex County Assignment Judge during the time the 52 grand juries were selected, testified that he had never used race or sex to exclude people from the position of foreperson. Rather, he made his selection from the grand jurors on the basis of his observations of them and his review of questionnaires indicating their sex, age, address and occupation. Although there were no specific criteria for selection of forepersons, Judge Demos looked for people whom he believed would have skill in communication and who may have administrative or supervisory experience. Judge Demos also made it his practice to select a woman as either foreperson or deputy foreperson and to have a male or female black person in one of those positions. In passing on defendants' contentions with respect to forepersons, we recognize that in a purely statistical sense, women 333 have been underrepresented in that capacity. We do, however, point out, although we do not regard this circumstance as controlling, that we are unable to see the slightest prejudice to defendants by reason of this underrepresentation as there is absolutely no basis in the record to conclude that defendants, who were caught with over five pounds of cocaine, were more likely to be indicted by a grand jury with a male rather than a female foreperson. In any event, the record fully supports the judge's conclusion that the duties of the foreperson are ministerial. See R. 3:6-4. In view of all the circumstances, we conclude that defendants' contentions that their rights to due process and to an impartial grand jury have been violated because of the alleged discrimination in selection of forepersons in Middlesex County is without merit. See Hobby v. United States, 468 U.S. 339, ___, 104 S.Ct. 3093, 3095, 82 L.Ed.2d 260, 265-266 (1984). Defendants assert that when they were detained and questioned on the turnpike they were in custody and thus they should have been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before they were requested to consent to open the trunk. In their view the police action of confronting them with the marijuana roach was likely to elicit an incriminating response and was the functional equivalent of express questioning. We disagree. As was stated in Hubbard v. Jeffes, 653 F.2d 99, 101-102 (3 Cir.1981): The absence of Miranda warnings does not vitiate consent to a seizure of personal property, because the Miranda protections are addressed to constitutional rights that are distinct from Fourth Amendment rights. Solicitude for individual privacy is the central thrust of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Privacy rights must be balanced, however, against the interest of the community `in encouraging consent [to a search], for the resulting search may yield necessary evidence of the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongfully charged with a criminal offense.' Schneckloth [v. Bustamonte,] supra, 412 U.S. [218] at 243, 93 S.Ct. [2041] at 2056 [, 36 L.Ed.2d 854.] Inasmuch as the integrity of the fact-finding process may be enhanced by admitting evidence recovered from a search or seizure, the 334 Supreme Court has not required a stringent standard for measuring voluntariness in the Fourth Amendment context. As the Court noted in Schneckloth, in refusing to impose the `knowing and intelligent waiver' standard, `almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.' 412 U.S. at 237, 93 S.Ct. at 2052. The Miranda rights implicate the reliability of the truth determining process, because they apply in an inherently coercive situation and they protect the right to counsel and the privilege against self-incrimination. Knowledge of the right to be assisted by counsel and to remain silent, however, has little bearing on the voluntariness of a consent to a search. We further point out that in State v. DeLorenzo, 210 N.J. Super. 100, decided 1986, we held that Miranda warnings need not be given in a drunk driving situation before the defendant is asked to give a breath sample as the taking of the sample is nontestimonial. See also Cody v. Solem, 755 F.2d 1323, 1330 (8 Cir.1985), cert. den. ___ U.S. ___, 106 S.Ct. 104, 88 L.Ed.2d 84 (1985); United States v. Ritter, 752 F.2d 435, 438-439 (9 Cir.1985). There was no error in the court's discretionary decision under R. 1:21-2 to deny admission to out-of-state counsel pro hac vice. While obviously the Sixth Amendment guarantees criminal defendants the right to assistance of counsel, it does not assure them the absolute right to the counsel of their choice. Davis v. Stamler, 650 F.2d 477, 479 (3 Cir.1981). So long as the bar of this State is able to provide effective counsel, there is no constitutional right to select an attorney who is not a member of the New Jersey bar. State v. Kavanaugh, 52 N.J. 7, 18 (1968), cert. den. sub nom. Matzner v. New Jersey, 393 U.S. 924, 89 S.Ct. 254, 21 L.Ed.2d 259 (1968). Furthermore, it has been held that: [the risk that] the presence of out-of-state counsel might hinder the orderly processing of the case is a sufficient countervailing state interest to justify the court's decision not to grant counsel of defendant's choice. Williams v. Nix, 751 F.2d 956 (8 Cir.1985), cert. den. ___ U.S. ___, 105 S.Ct. 2681, 86 L.Ed.2d 699 (1985). Here Chappee sought admission for John Van Ness, a Colorado attorney, and Fuller sought admission for Keith Stroup, a member of the District of Columbia bar, and a Mr. Pritzler, a member of the 335 Illinois bar. The trial judge noted the difficulties in scheduling criminal cases when all attorneys are members of the New Jersey bar, and believed the problem would be exacerbated by admitting counsel in this case. The court further believed that the issues presented in the case could be ably handled by local counsel. Inasmuch as the proposed attorneys were from varied and distant geographic locations, the judge certainly did not abuse his discretion in denying defendants' motions. We also point out the following. We have given this case an intensive review. While we do not suggest that the absence of discernable prejudice from denial of defendants' motions for admission of counsel pro hac vice in itself precludes defendants from obtaining relief by reason of the denial, we nevertheless think it appropriate to state that from our study of the record, the briefs on appeal and observation of defendants' attorneys at oral argument, it is clear defendants have received extremely competent representation both in the trial court and here. Indeed we are satisfied that beyond any doubt even if defendants had been represented by the attorneys denied admission they could not have received more competent representation or a better result. We point out that defendants almost asked to be arrested. They were speeding on the turnpike in the early morning hours with marijuana in plain view. Further, they did not even have proper papers for the car. The case against them was overwhelming and their guilt clear beyond doubt. Yet skilled counsel has raised every conceivable defense on their behalf and has turned what should have been a routine case into a massive and protracted struggle. The trial judge's anticipation that New Jersey counsel would ably conduct the defense has been vindicated. We have carefully considered all other issues raised and have determined they are clearly without merit. R. 2:11-3(e)(2). We note that at oral argument Chappee's attorney, who represented he had his client's consent to do so, withdrew point VI of his brief relating to denial of the severance motion. Affirmed as to both defendants. NOTES [1] The correct section is N.J.S.A. 24:21-19(a)(1). [2] 68 N.J. 349 (1975).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520190/	587 S.W.2d 948 (1979) STATE of Missouri, Plaintiff-Respondent, v. Leland BROWNER, Defendant-Appellant. No. 38331. Missouri Court of Appeals, Eastern District, Division Two. September 25, 1979. 950 Roy A. Walther, III, Crouppen, Walther, Zwibelman & Walsh, St. Louis, for defendant-appellant. John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Nels C. Moss, Asst. Circuit Atty., St. Louis, for plaintiff-respondent. KELLY, Judge. Appellant Leland Browner was found guilty by a jury in the Circuit Court of the City of St. Louis of two Counts of Assault with Intent to Kill[1] on the 1st day of July, 1976. After his motion for new trial was 951 overruled, he was sentenced on July 9, 1976, to the custody of the Missouri Department of Corrections for two terms of seventy-five years, to be served consecutively. He filed a timely notice of appeal raising four Points Relied On as grounds for the reversal of his conviction. We affirm. The sufficiency of the evidence to support the jury verdict is not raised; therefore a short statement of the facts will suffice. According to the evidence appellant, Ladel Walton and Eddie Turner drove to the New Age Savings & Loan Ass'n. at 1401 North Kingshighway in the City of St. Louis on July 18, 1975, and upon arriving there discussed their plan to rob the bank. They entered the bank and appellant, armed with a handgun, approached a security guard, and the security guard struggled with him in an effort to disarm him. During the scuffle appellant shot the security guard; the security guard fell behind a counter and the appellant leaned over the counter and shot the security guard two more times. After this, the appellant moved to another part of the bank and as he did so Mr. Anderson, the Collection Manager of the bank, went to the aid of the security guard. Appellant returned to where Mr. Anderson was with the security guard and when Mr. Anderson observed him approaching Mr. Anderson held up his arms. Appellant shot Mr. Anderson twice. Both the security guard and Mr. Anderson identified the appellant at trial as the man who shot them. Appellant's First Point Relied On is that the trial court erred when it denied his motion for a mistrial filed during the voir dire examination of the jury because one of the veniremen stated that she had made a wrong decision concerning the innocence of a defendant in a prior criminal trial, and this statement was prejudicial to the appellant. Where the question on appeal is whether a remark made by a juror during voir dire examination of a jury panel is so prejudicial as to require a mistrial, the real issue to be resolved is whether the juror's remarks were in fact so prejudicial as to infect the entire panel to the prejudice of the accused. State v. Turner, 462 S.W.2d 723, 725[1] (Mo.1971). The general rule is that the disqualification of an individual juror for expressing an opinion or making remarks indicating a bias or prejudice which might preclude the juror from serving as a juror in a case is not a sufficient ground for a challenge of the entire jury panel. State v. Weidlich, 269 S.W.2d 69, 71[3-5] (Mo.1954). To hold otherwise would be to chill the procedure of attempting to extricate from prospective jurors those hidden prejudices which might deprive either the state or the accused of a fair trial. The evaluation of any effect a juror's answer might have upon fellow jurors during the voir dire proceedings and what action must be taken to assure both sides to the fair trial our system attempts to guarantee must, of necessity, be largely entrusted to the discretion of the trial court. State v. Murphy, 533 S.W.2d 716, 717-718[1-2] (Mo. App.1976). We note that the juror who gave this response was removed for cause from the jury panel. In this particular instance the Assistant Circuit Attorney inquired if there was anyone who felt that by reason of any prior jury experience they couldn't be fair and impartial to both parties in the case. Juror No. 1 replied that she would be a bit prejudiced "because we made the wrong decision, which they tell us afterwards." Without any further inquiry into the matter, this juror continued: "I was sick for weeks afterward because I thought I was being a fair person and I voted: Free him. There's no proof. We don't want to put an innocent man in jail. And afterwards, they were all mad at me about it. The others knew he was guilty. And I felt we were being made fools of by not giving us all the information." At this point, the counsel for appellant approached the Bench and, out of the hearing of the jury requested a mistrial, and that the entire panel be stricken because of 952 the juror's statement; that he was not requesting any other relief. The motion to quash the jury panel and grant the mistrial was denied. With the record in this condition we cannot say that the trial court abused its discretion in denying appellant's motions. Only a portion of the voir dire examination is incorporated into the transcript on appeal and we are unable to ascertain from that portion whether other jurors were affected by this juror's statements or even if they were asked if they heard these remarks and what effect, if any, it would have on their ability to serve. Many circumstances occur during voir dire examination which at first blush might appear to be prejudicial. However, we believe that where, as here, trial counsel contends the entire panel of jurors has been tainted he has the burden of furnishing a reviewing court evidence that in the light of the statement made by the juror, his client's rights have been prejudiced, and in the absence of any such evidence, on appeal we must recognize the fact that the trial court is in a better position to observe what effect, if any, the juror's alleged prejudicial statement had on his or her fellow jurors. We rule this Point against appellant. Appellant's Second Point Relied On is that the trial court erred in overruling his motion for mistrial when the prosecutor, in his opening statement informed the jury that both co-defendantsEddie Lee Turner and Ladel Waltonconfessed to the crime at the time of their arrest when the prosecutor knew that Ladel Walton was not going to be a witness and his statements were therefore inadmissible. In his opening statement the Assistant Circuit Attorney stated: "These robbers then fled. And at various later dates, one gentleman was arrested and confessed to the crimethat's Mr. Turnerimplicating Mr. Browner and Mr. Walton. Subsequently Mr. Walton was arrested and he, too, admitted to the crime." At this juncture appellant's counsel objected, asked that the jury be instructed to disregard the statement and requested a mistrial. The court then inquired: "Mr. Moss, do you expect to enter this evidence as _ _" The Assistant Circuit Attorney replied: "I didn't say the content of his confession; I just said that he admitted the crime."[2] The office of the opening statement is to advise the jury of the facts the state expects to prove, and to inform the defendant of the contemplated course of the prosecution and the facts relied upon in support thereof so as to fairly enable the defendant to meet the charge or charges preferred against him. As a general rule, it should be brief, and general rather than detailed. It should be confined to statements based on facts which can be proved 953 and should not include facts which are plainly inadmissible. The scope and extent of the opening statement is largely within the discretion of the trial court, and the trial court must necessarily rely upon the good faith of counsel in making their opening statements to a jury as to material facts they intend to prove. The mere fact that no evidence is adduced as to some of the precise facts related to the jury in the opening statement is not sufficient to constitute error so prejudicial as to require the reversal of a conviction, except where it can be established, directly or by inference, that counsel making said statement had not intended to, or knew that he could not, produce testimony to support said statement when made. State v. Horn, 498 S.W.2d 771, 774[1] (Mo.1973); State v. Feger, 340 S.W.2d 716, 724-725[12-16] (Mo.1960). The question is whether counsel acted in good faith when he made the opening statement, and could reasonably believe that the evidence could and would come in during the trial. If, at the time of the opening statement counsel knows that he cannot produce the only witness who can furnish the particular facts in support of his opening statement, it is objectionable for him to indicate in opening statement that such evidence will be adduced at trial. State v. Stillman, 310 S.W.2d 886, 888[2] (Mo.1958). And if the evidence would be plainly inadmissible upon objection, it should not be included in the opening statement. All attorneys, including prosecuting attorneys, are presumed to have knowledge of the law, including the rules of evidence applicable to the trial of criminal cases, and even where the prosecutor is presumed to have acted in subjective good faith in making unprovable statements, where that faith is founded on deliberate disregard of the rules of evidence or ignorance thereof, it should not be concluded that he acted on reasonable grounds for supposing that he would be able to show the facts stated in his opening statement. State v. Hicks, 535 S.W.2d 308, 311-313 (Mo.App.1976). As noted in Hicks, in many cases where this question has been raised the question has been whether the prosecutor has acted in good faith and with reasonable grounds for supposing that he will be able to show the facts stated; however, where improper statements result in actual and real prejudice to the defendant thereby depriving him of a fair and impartial trial, the prosecutor's good faith should be of slight concern in deciding the question of error. Where the prosecutor's actions are prejudicial and founded upon a deliberate disregard of well known rules of evidence it should not be concluded that he acted on reasonable grounds for supposing that he would be able to show the facts stated in his statement. In the trial court appellant's objection to this portion of the state's opening statement was that any confession by Mr. Walton was inadmissible because it was hearsay. In his Motion for New Trial this Point is stated as follows: The Court erred in not granting defendant's Motion for Mistrial when during the State's opening statement the State's attorney said a co-defendant had been arrested and confessed the crime, when the Circuit Attorney had no intention of calling this co-defendant as a witness and knowing that the statements of a co-defendant are inadmissible against another, thereby prejudicing the defendant.[3] On appeal, the appellant argues that this statement was highly prejudicial to him for two reasons: "(1) the confession is hearsay, and falls within no exception to the exclusionary rule; and (2) the confession of a co-defendant cannot be received against defendant at trial." The state argues that reference to Mr. Walton's confession was made in good faith while attempting to fairly outline the proof which could arguably be adduced at trial and, if erroneous, constitutes harmless error in view of the overwhelming evidence of guilt adduced at 954 trial so that it does not warrant reversal of the conviction on appeal. Of the cases decided by the appellate courts of Missouri, the closest in facts to this case is State v. Minor, 556 S.W.2d 35 (Mo. banc 1977), vacated on other grounds sub nom. Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979). In Minor, the question was whether a prosecutor's remark during the course of opening statement that defendant's companion admitted complicity in the robbery constituted grounds for reversal of a conviction of the defendant. Defendant's counsel had objected and requested a mistrial, but the trial court refused to grant the requested mistrial although the prosecutor was admonished, out of the hearing of the jury, not to "make any more statements like that." The court said: "Our function is to determine whether as a matter of law, the trial court abused its discretion to the prejudice of the defendant in refusing to grant a mistrial." 556 S.W.2d 39. Because the prosecutor's somewhat ambiguous comment was not followed by further objectionable reference in opening statement, during testimony or in closing argument, the trial court observed the incident and was in better position to assess its effect and determine measures necessary to cure it, and the evidence of guilt of the defendant was strong, the court held the prejudice "spawned" by the prosecutor's improper remarks did not warrant reversal. As in Minor, the state did not introduce, nor seek to introduce, the alleged confession of Mr. Walton. Unlike Mr. Turner, he did not testify at trial for the state. His name was not endorsed on the indictment as a witness for the state.[4] He was not named as an accomplice of the defendant in the indictment charging the crimes for which appellant was tried and convicted. However, the ease with which the state has been permitted to endorse witnesses at the last moment would not necessarily rule out the possibility that the state did intend to call him and produce him at trial as a state's witness when the opening statement was made. The only evidence that the Assistant Circuit Attorney knew at the time he made this statement that he did not intend to call Mr. Walton as a witness is the statement of defense counsel that this was so. This is not sufficient for us to conclude that the Assistant Circuit Attorney had no intention of calling Mr. Walton as a witness when he made his opening statement. However, we deduce from the exchange between counsel and the trial court that it was the Assistant Circuit Attorney's position that the fact that Mr. Walton made a confession of his participation in the crime was a "fact" which could be developed in the trial, even though the contents of the alleged confession were inadmissible as hearsay, and even though Mr. Walton did not testify for the state. We disagree. We are dismayed by what we conclude to be a thinly veiled attempt by an experienced prosecutor to inject into appellant's trial the fact that an accomplice had admitted his participation in the crime for which appellant was on trial, when he should have knownand we believe did knowthat he was thereby attempting to evade the impact of a well known and fundamental rule of evidence and do indirectly what he could not have done directly. We have here a trial in which the appellant alone was charged in the indictment and, alone, was on trial. It is a fundamental principle of our law that every defendant is entitled to a separate trial, a 955 right recognized by Rule 25.07(a) and § 545.880 wherein it is provided that when two or more defendants are jointly charged with the commission of a felony, any one defendant, before announcing ready for trial at any term of court, shall, upon request, be tried separately. The same principle which has held it error to show in evidence or to tell the jury that a jointly accused defendant has been convicted, pled guilty or been acquitted of the same crime for which the defendant is on trial, applies to this situation. State v. Aubuchon, 381 S.W.2d 807, 815-816[14, 15] (Mo.1964). In reaching its holding in Aubuchon, the court reasoned that the theory of our statute abolishing the distinction between principles and accessories, § 566.170 (now § 562.041), is that every defendant who joins in the commission of a crime is liable, on his own, as a principal; and he is also entitled to be tried on his own without having his guilt prejudged by what happened to a co-defendant. As was said in Aubuchon, 381 S.W.2d at 816: "Were this not the law, the value of a defendant's right to a separate trial . . might be considerably dissipated." The fact that Mr. Walton, an accomplice, admitted his participation in the commission of the crime is not competent evidence that this defendant too is guilty of said crime. Had the state attempted to introduce into evidence Mr. Walton's statement admitting the crime it would have been subject to an objection that it was hearsay, unless it could have been brought in under one of the exceptions to the rule. The state has not contended that this statement was admissible because it was made in furtherance of a conspiracy or as a part of the res gestae. Once a common enterprise is ended, whether by accomplishment or abandonment, no one of the joint actors is permitted to affect the others by any subsequent act or declaration of his own. The admission made by Mr. Walton out of court, not under oath and out of the presence of the appellant and some time after the commission of the crime was not admissible as evidence against the appellant. State v. Newell, 462 S.W.2d 794, 796[1] (Mo.1971); State v. Cross, 357 S.W.2d 125, 128[10] (Mo. 1962); State v. Chernick, 278 S.W.2d 741, 748[6] (Mo.1955); State v. Hill, 352 Mo. 895, 179 S.W.2d 712, 716[7, 8] (1944). Since the admission of Mr. Walton, made out of the presence of the appellant, was inadmissible, the fact that it was made is likewise inadmissible, it is not binding on the appellant, and should not have been referred to in the state's opening statement. Furthermore, by taking this tack and relating to the jury in his opening statement the "fact" that Mr. Walton had "admitted to the crime" the Assistant Circuit Attorney evaded a major safeguard against the improper use of a confession, i. e. a preliminary determination by a trial court that the "admission" or confession was freely and voluntarily given after the person making the admission or confession had been advised of his legal rights. Sims v. State of Georgia, 385 U.S. 538, 543, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Concern about this safeguard most likely triggered the inquiry by the trial court whether the admission of Mr. Walton had been used in the federal court.[5] Even if such inquiry had been made in federal court, that would not have made it admissible in this trial against appellant. Mr. Justice White, in his dissent in Bruton v. United States, 391 U.S. 123, 141, 142, 88 S.Ct. 1620, 20 L.Ed.2d 476, said: As to the defendant, the confession of the codefendant is wholly inadmissible. It is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally. Furthermore, the codefendant is no more than an eyewitness, the accuracy of whose testimony about the defendant's conduct is open to more doubt than would be the defendant's own account of his actions. More than this, however, the statements of a codefendant have traditionally been viewed with special suspicion. . . . Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant 956 said or did are less credible than ordinary hearsay evidence . . . the codefendant's admissions cannot enter into the determination of the defendant's guilt or innocence because they are unreliable. . . Although an accomplice, Mr. Walton, could if he were so willing, have been permitted to testify as any other eye-witness to the circumstances of this crime. So far as we can ascertain from this record on appeal the Assistant Circuit Attorney never had any intention of calling him as a state's witness when he made his opening statement, although he never clarified this question, and Mr. Walton did not testify in the case. If good faith alone were the test, we would find the Assistant Circuit Attorney failed the test in this instance. We hold that the trial court erred in allowing the Assistant Circuit Attorney's statement to stand in the face of appellant's objection. The question now becomes whether the appellant was prejudiced by the trial court error in denying his motion for new trial and whether the appellant is therefore entitled to have his conviction set aside and this cause remanded for a new trial. We have concluded that in view of the strong evidence of appellant's guilt, it was harmless error. In order to reach this conclusion this reviewing court must find from the record as a whole that the jury either disregarded or could not have been influenced to appellant's prejudice by this error of the trial court. State v. Degraffenreid, 477 S.W.2d 57, 64 (Mo. banc 1972). We reach this conclusion based upon the following. The jury was instructed just minutes prior to the Assistant Circuit Attorney's opening statement that opening statements are not evidence. MAI-CR 2.02. After the conclusion of the opening statement no further reference was made to Mr. Walton's "admission to the crime." The state's evidence was very strong. Both victims of the assault testified and identified appellant as the man who shot them. Another witness, Donna Harris, who was seated in an automobile outside the bank and observed the three men both enter and leave the bank building, also identified the appellant as one of those three men she had so observed, and described the clothing he was wearing at the time. The jury was further aided by viewing a sixteen millimeter film of the perpetration of the robbery taken by the bank surveillance camera and some still photographs developed from specified frames of the moving picture film. One of the participants in the commission of the robbery, Eddie Turner, testified and detailed the circumstances surrounding the shootings and the robbery of the bank. He identified the appellant as one of the participants in the robbery. Although he did not see the appellant actually shoot anyone, he heard the shots and when he looked in the area from whence he heard them he observed appellant running for the door of the bank. Appellant arrived at the door first and as Turner arrived there the appellant pushed him back and told him that since they were in the bank they should get the money. In a close case error which might call for reversal may be disregarded as harmless when the evidence of guilt is strong. State v. Degraffenreid, 477 S.W.2d at 65[15]. The evidence of appellant's guilt was strong and the error in the Assistant Circuit Attorney's opening statement was harmless and does not entitle appellant to have his conviction set aside and a new trial ordered. State v. Minor, 556 S.W.2d 35 (Mo. banc 1977). We rule this point against appellant. Appellant's third and fourth Points Relied On concern alleged errors referable to an escape by appellant from the City Jail of the City of St. Louis on May 23, 1976, after his conviction on federal charges arising out of this incident and prior to his trial on these state charges. His third Point Relied On is that the trial court erred when it allowed Samuel Greene, 957 the Warden of the City Jail, to testify over objection, that appellant had escaped from jail because (1) he was in jail by reason of his conviction on the federal charges arising out of this robbery and (2) the conditions in the jail had been declared unconstitutional by a federal court. State v. Tyler, 306 S.W.2d 452 (Mo. 1957) has been cited as authority for the proposition that evidence of flight or escape is admissible for the purpose of raising a presumption of consciousness of guilt of the crime for which a defendant is on trial. This is so regardless of the fact that at the time of said escape he was in custody on other charges which were still pending. In those circumstances, the Tyler court said that the rule excluding said evidence confused the admissibility of the evidence with the weight to be given by the jury to the evidence adduced as to the circumstances of defendant's confinement and escape when he is confined on two or more charges at the time, "except in those instances where the trial court, as with any other issue, should declare as a matter of law that the evidence is insufficient for a jury reasonably to find that defendant escaped or fled wholly or partially on account of the pendency of the charge on trial, the question of whether an escape shows a consciousness of guilt of the offense on trial is a jury question." 306 S.W.2d at 459. What Tyler did not answer, however, is who bears the burden of presenting sufficient evidence to make the issue one for the jury. If we assume, without deciding, that to entitle the state to the benefit of this presumption of the consciousness of guilt all it need show is the fact of escape, then it might appear that the burden of coming forward with the evidence to rebut this presumption shifts to the defendant. The defendant then should be permitted to present evidence to explain that his escape was not due to a consciousness of guilt of the crime for which he was on trial but for other reasons. With the record in this state, it would then be for the jury to consider the evidence in toto and apply or refuse to apply the presumption. We have found a number of Missouri cases stating the law of Missouri in this respect, but not one has decided upon whom the burden of proof on this issue rests. Appellant's attack on the admissibility of this evidence is directed at the possibility that his escape may have been occasioned by his conviction on federal charges for bank robbery arising out of the incident of the robbery of the bank during which these shootings took place and was not the basis for the presumption of consciousness of guilt of these assault charges. There is no evidence in this record to support the appellant's contention that at the time of his escape he was in custody by reason of a federal conviction. However, when the Assistant Circuit Attorney announced that he was calling "Sam Greene" as his next witness defense counsel objected at the Bench and out of the hearing of the jury to this witness testifying about evidence of an escape because appellant was already a federal prisoner, having already "received time" from the federal government, and therefore the presumption aforesaid could not be drawn from appellant's escape. In response, the Assistant Circuit Attorney explained that the appellant had never been in federal custody but was always a state prisoner; that he had been released to the federal authorities only for the purpose of trial on a writ and had been returned to state custody prior to serving a sentence imposed by the federal court. Appellant's counsel replied that since appellant had been sentenced to twenty-five years by the federal court then the presumption was that he escaped to "get away from that time." However, other than these arguments of counsel there is no evidence of this sentencing. Nevertheless, if, as appears, this federal conviction arose out of the same robbery in which the three assaults for which appellant was on trial here, the question 958 almost becomes academic. Pursuant to the authority of Rule 24.04 the shootings which occurred during the robbery were joined in a single indictment and tried at the same time. Therefore, the question whether the escape was presumptively evidence of a consciousness of guilt as to one of the crimes, and not another, loses some of its validity. In the absence of any evidence that the appellant was in custody by reason of a sentence imposed by a federal court, the jury could not consider that circumstance in determining whether to give the state the benefit of the presumption. The presumption of consciousness of guilt, if employed by the jury, would not be so prejudicial, if prejudicial at all, by reason of the single transactional factual basis out of which the charges emanated to require reversal. However, if the burden of coming forward with evidence to avoid the presumption shifts to the defendant once the escape is shown, then he should be allowed to introduce any competent, relevant and material evidence to rebut the presumption. This requires us to consider appellant's fourth and final Point, whether the trial court erred in sustaining the prosecutor's objections to questions concerning the unconstitutional standards at the City Jail. During cross-examination of Warden Greene appellant undertook to elicit testimony from him concerning the living conditions at the City Jail. Defense counsel developed that appellant was assigned to "administrative segregation," i. e. "isolation" and, according to the Warden, confined in a cell 2' X 4' X 6' but also had access to a recreation room where a television was available to him during the daytime hours. He then inquired: "Now is the jail still under a court order from the Federal Government that it's unconstitutional?" The Assistant Circuit Attorney objected to the question on the grounds that it was irrelevant and the trial court sustained the objection. Appellant made the following offer of proof: I make an offer of proof that the presumption is raised that he escaped because he's guilty. I propose that that presumption under the law would be just as well that the Federal Government said that's unconstitutional over there; it's unfit for human confinement. It still is. It hasn't been lifted. And they're still under constant scrutiny. The offer of proof was overruled. To preserve for review the overruling of an offer of proof the facts and reasons given in an offer of proof must be sufficiently specific and detailed so as to demonstrate the relevance of the testimony the party making the offer of proof seeks to introduce into the case. State v. Umfrees, 433 S.W.2d 284, 286[1, 2] (Mo. banc 1968); State v. Davis, 515 S.W.2d 773, 775[2] (Mo. App.1974). This offer of proof does not meet these standards; it constitutes nothing but a conclusionary statement. It fails to advise the trial court when the judgment was entered by the federal court, whether appellant was confined in the jail at that time, whether the same conditions upon which the federal court made its findings still persisted, and what specific acts of the jail administration or fellow inmates made escape necessary. The defense of "necessity" has been recognized in some jurisdictions in a prosecution for escaping from confinement. Assuming, without deciding, that the same facts which support a defense of necessity are admissible where the state seeks the benefit of the presumption of consciousness of guilt to rebut said presumption, appellant's offer of proof falls far short of demonstrating that the evidence he sought to introduce would meet those standards announced by the cases in those jurisdictions recognizing the defense. See People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal. Rptr. 110 (1974); People v. Harmon, 53 Mich.App. 482, 220 N.W.2d 212 (1974); State v. Reese, 272 N.W.2d 863 (Iowa 1978). In those cases it was held that to make out a defense of necessity the defendant must 959 show: 1) specific threats of death, forcible sexual attack or bodily injury; 2) complaints to authorities would be futile; 3) no violence against innocent persons during the escape; and 4) the prisoner reports to the authorities when he has reached a place of safety. None of these are shown in appellant's offer of proof. We hold the point was not preserved for review because of the paucity of the offer of proof and we also hold that the trial court did not err in sustaining the objection to the question as framed. Judgment affirmed. STEPHAN, P. J., and STEWART, J., concur. NOTES [1] Appellant was charged in the Indictment with three Counts of Assault with intent to kill; however, at the close of defendant's case the state dismissed Count II of the Indictment. Appellant also was charged with having been previously convicted of a felony, Carrying a Concealed Weapon, and after a finding on this issue the assessment of punishment was not submitted to the jury. [2] At this point, out of the hearing of the jury the following colloquy took place at the Bench: Mr. Walther: He said Turner was going to testify and now he just said they arrested Walton, and Walton is not going to testify. Mr. Moss: The fact that he admitted to it is a fact that occurred. I didn't say this man, even though he did, I didn't say he implicated him. Mr. Walther: That would be hearsay testimony. Mr. Moss: That he confessed? THE COURT: Do you have a witness? Mr. Moss: I have a witness that will show you Walton confessed. I'm not going to ask the nature of the confession. Mr. Walther: He is saying he has a witness to testify that Ladel Walton confessed to that. That is inadmissible to this crime. Using his confession, even implying to the jury that he admitted to it. And he doesn't have Ladel Walton here. That is highly prejudicial; it's hearsay; it's prejudicial. The jury now knows that two, three people were arrested. And he's not even going to testify at a trial. Mr. Moss: I would indicate that the fact well, I've already stated my position. I don't believe it's error. THE COURT: Has Walton been tried? Mr. Moss: No. THE COURT: For any phase of this? Mr. Moss: Yes, federal. THE COURT: Was he convicted? Mr. Moss: Yes. THE COURT: Was that statement used in the federal court? I'll overrule the objection. Then in the presence of the jury the Assistant Circuit Attorney continued: "Subsequent to Mr. Walton's arrest, Mr. Browner was then arrested in February or January of this year." [3] On appeal, although reference is made to the statement concerning Mr. Taylor's confession of the crime and his implication of appellant therein, we do not consider it because not raised in this Motion for New Trial. [4] We were also unable to find endorsed as a witness on the indictment in this case the name of Eddie Turner, the accomplice who appeared at trial and testified for the state after working out a "deal" with both the state and federal authorities in return for his testimony. He described in detail the robbery of the bank on July 22, 1975, how the robbers were attired, their preparation for the robbery, the incident itself, the fact that there was a shooting and that immediately thereafter he observed the appellant running to the door of the building, and their escape. He further testified that appellant told him that he shot the guard but that he said nothing about shooting the other man in the bank. He also described the splitting of the loot. The details of the questioning by police officers were also developed. The right of the state to call him as a witness is not before us, however. [5] See footnote 2, supra.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520193/	587 S.W.2d 526 (1979) Robert McVEA, Appellant, v. Billy VERKINS et al., Appellees. No. 1447. Court of Civil Appeals of Texas, Corpus Christi. August 30, 1979. 528 Ralph Brown and Michael W. Bahan, San Antonio, for appellant. Gerald M. Birnberg, Michael A. Maness, Houston, for appellees. OPINION BISSETT, Justice. This is a suit filed by Robert McVea against Billy Verkins and Melvin Powers on January 3, 1978, to recover damages for an alleged conversion of cattle. It was stipulated that the defendants were entitled to an offset of $9,607.93 against any judgment that might be rendered against them for money previously paid by them to a bank for the benefit of McVea and the bank. Following a jury trial, judgment was rendered on October 2, 1978, that the plaintiff McVea recover nothing against the defendants Verkins and Powers. McVea has appealed. The plaintiff-appellant will be referred to by name, and the defendants-appellees will be referred to as "defendants" or by name. On November 7, 1977, the date of the alleged conversion, McVea, as lessee, was in possession of a 479 acre tract of land under a written lease with Powers, as lessor. The jury, insofar as the disposition of this appeal is concerned, found that on November 7, 1977, 80 cows, 30 calves and 2 bulls owned by McVea were on the 479 acres; that there was no conversion of the cattle; that the acts of defendants were not malicious; and that the "fair market value" of the cattle on that date was $17,787.59. McVea contends that a conversion of the said cattle on November 7, 1977, was established as a matter of law. He attacks the finding relating to "fair market value" with a "no evidence" point, a "factually insufficient evidence" point and "an against the great weight and preponderance of the evidence" point. We, therefore, have read the record in its entirety and dispose of this appeal in accordance with the guidelines set out in Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 359 (1960). We first determine whether there was a conversion as a matter of law. The defendants contend that there was no conversion as a result of Verkins' acts on November 7, 1977, because: 1) they had a right to possess the cattle pursuant to a valid agister's lien under Tex.Rev.Civ.Stat. Ann. art. 5502 (1958); 2) their conduct did not exclude the exercise of any rights by McVea with respect to the cattle; 3) they originally came into possession of the cattle with McVea's consent; 4) they had a right 529 to possess the cattle pursuant to a valid landlord's lien on the cattle; 5) Verkins' action on November 7, 1977, was justified in order to secure a reasonable time to investigate the rights of the parties; 6) they were reasonably exercising, in good faith, a distinct legal right to protect timber on the leased premises from imminent destruction by McVea; and, 7) McVea did not demand that they surrender possession of the cattle to him. We do not agree. A written lease, for grazing purposes only, covering a tract of 479 acres of land in Gonzales County, Texas, effective November 1, 1976, was executed by and between Powers, as lessor, and McVea, as lessee. The lease was for a term of 4 years, commencing November 1, 1976, and provided for a rental of $1,920.00 per year, payable annually in advance. The lease contained the following express covenants: "5. LESSEE'S COVENANTS: Lessee covenants to Lessor as follows: (a) That he will well and punctually pay rents as herein required and quietly surrender the premises unto Lessor on the day of expiration hereof in as good condition as the same were when received, reasonable wear and tear being excepted. (b) That he will use said premises for grazing of livestock only and for no other purpose. (c) That he will not put improvements or cross fences upon the premises without the prior written consent of Lessor. (d) That on failure to pay the rent in advance, as aforesaid, or to comply with covenant herein made, Lessor may pursue any of the remedies provided by law and Lessor, his agent or attorney shall have the right and power to enter upon and hold, occupy and take possession of the leased premises. In this connection, it is agreed that Lessor shall have a landlord's lien upon all personal property of Lessor (sic) placed upon such premises to secure Lessee's performance hereunder." McVea went into possession of the 479 acre tract on or about November 1, 1976, and stocked the pasture with cattle. He paid the first year's rental contemporaneously with the signing of the lease. He did not pay the advance annual rental on November 1, 1977, when it became due. On October 16, 1977, Verkins, who was Powers' "property manager," learned that wood was being cut on the leased premises. He attempted to contact McVea but was unsuccessful. He did, however, reach "someone" at the McVea residence in response to a telephone call which he made on October 18, 1977. He said that he told that person: "Please tell Mr. McVea to stop the timber cutting." A day or so before the day of the alleged conversion of the cattle on November 7, 1977, Verkins was notified that a considerable number of trees had been cut on the leased premises. Verkins then left his office in Houston, Texas, and went to the pasture. On arrival, he said that he found several places where large quantities of freshly-cut wood had been stacked. He concluded that McVea was responsible. He said that it was apparent to him that there would be additional woodcutting and more wood removed from the premises unless something was done. He purchased new locks and chains and installed them on all exterior gates to the pasture. Following the changing of the locks, he proceeded to Gonzales, Texas, and filed a criminal complaint against McVea, which charged the latter with felony theft. Later on during the day, he located McVea at a barbeque stand and engaged him in conversation. According to Verkins, he asked McVea why "he was continuing to cut wood on the property." He said that McVea told him he "was cutting the wood for barbequing." Verkins then informed McVea that he had filed a criminal complaint against him earlier in the day. Concerning the leased premises, Verkins told the jury: "I told him not to go on the property ... I would be in contact with him within three days or for him to contact me within three days"; and to "please call me and let's get this resolved; 530 but, I don't know what to do about it right now without legal counsel." Concerning the cattle, Verkins testified that he told McVea: "We will notify you about getting your cattle out." McVea testified that Verkins "told me don't do anything with the cattle until I had heard from him." McVea's account of the conversation was different. He denied that he ever cut any wood on the leased premises. He testified that Verkins accused him of destroying trees on the property, that Verkins said to him: "Do not go on my premises anymore." McVea then told the jury: "I offered to pay him his rent. He said: `As of this moment, your lease is cancelled and do not go on my premises anymore until I let you know'... that if I was caught on there, I would be shot.'" At the trial while being cross examined, Verkins denied that McVea offered to pay the past due rent or that he told McVea that his lease had been terminated. However, the record shows that requests for admissions were served on Verkins on June 2, 1978, and that he made no response thereto. On the opening day of trial (August 14, 1978), the trial judge ordered that the facts inquired about in McVea's requests for admissions be "deemed admitted as true and correct." Included in the requests was "admission three," which requested that Verkins admit or deny that on the date of the alleged conversion "you informed Plaintiff that his lease was terminated." Upon returning to Houston, Verkins contacted Powers' lawyer and told him of the events which occurred on November 7, 1977. By letter dated November 9, 1977, which was prepared by Powers' lawyer, Powers notified McVea that he was in breach of the lease in two respects: 1) by cutting timber on the property which constituted an unlawful taking of property; and 2) by failing to timely pay the annual rental of $1,920.00, which was due on November 1, 1977. The letter also stated: "You are further notified that the Landlord's Lien upon all personal property as granted in Section V Lessor's (sic) Covenants is hereby affected and that formal demand is made upon you for the amount of rent past due; and you are further notified that all right, title and interest you have in and to the premises is hereby terminated because of your breach; and you are further notified that any attempt to enter in and upon the property shall be termed trespassing upon said premises." McVea received the letter on November 10, 1977. The only express covenants to be performed by the lessee (McVea) in the lease contract are those which appear in Section V thereof, heretofore copied verbatim. There is no express covenant which prohibited McVea from cutting timber, although there is such an implied covenant when the contract as a whole is examined. While the lease does not contain an express forfeiture clause, the clear implication of the language in V(d) thereof is that the lease will be forfeited upon the "failure to pay the rent" in advance ... or to comply with any covenant herein made." It can be argued that such language limits the right to terminate the lease (a forfeiture) to a breach of express covenants. Be that as it may, there is no provision in the lease which permits the lessor, upon breach of covenant by the lessee, to take possession of the lessee's personal property on the premises. Cf. Harris v. Panhandle & S. F. Ry. Co., 163 S.W.2d 647 (Tex.Civ.App.El Paso 1942, writ ref'd w. o. m.) It was said in Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex.Sup.1971): "... To constitute a conversion, it is not necessary that there be a manual taking of the property in question. The unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights, is in law a conversion .." Conversion may be direct or constructive; it is concerned with possession, not title; it is complete where a person unlawfully and wrongfully exercises dominion and control over the property of another 531 to the exclusion or defiance of the right of possession of the owner or of the person entitled to the possession of the property involved. 14 Tex.Jur.2d, Conversion, § 1. As a general rule, a demand for the return of the property and a refusal to do so are required to establish a conversion by a person who lawfully obtained possession of the involved property. Sunray Enterprises, Inc. v. Rosenaur, 335 S.W.2d 670 (Tex.Civ.App.DAllas 1960, writ ref'd n. r. e.); Rice v. Lambert, 408 S.W.2d 287 (Tex. Civ.App.Corpus Christi 1966, no writ); Zerr v. Howell et al., 88 S.W.2d 116 (Tex. Civ.App.San Antonio 1935, no writ). But, a demand and refusal are not necessary where the possession was acquired wrongfully. Hicks Rubber Co., Distributors v. Stacy, 133 S.W.2d 249 (Tex.Civ.App.Austin 1939, no writ); Cotten v. Heimbecher, 48 S.W.2d 402 (Tex.Civ.App.Amarillo 1932, no writ). Further, a demand and refusal are not required after the conversion has become complete, or where it is shown that a demand would have been useless. Neyland v. Brammer, 73 S.W.2d 884 (Tex.Civ.App.Galveston 1934, writ dism'd). Although an intent to do an act amounting to a conversion of personal property is necessary in order to constitute a conversion, it is the act of conversion itself that gives a right of action, and not the intention to convert. 89 C.J.S. Trover & Conversion § 7. Wrongful intent to convert another's property is not an essential element of conversion, nor is it material to any issue involved in a suit for conversion except as to the issue of exemplary damages. Powell v. Forest Oil Corporation, 392 S.W.2d 549 (Tex.Civ.App.Texarkana 1965, no writ); 14 Tex.Jur.2d, Conversion, § 3. In a conversion suit, it is no defense that the defendant acted in good faith. Ligon v. E. F. Hutton & Company, 428 S.W.2d 434 (Tex.Civ.App.Dallas 1968, writ ref'd n. r. e.); Fenley v. Ogletree, 277 S.W.2d 135 (Tex.Civ.App.Beaumont 1955, writ ref'd n. r. e.); Chrysler Credit Corporation v. Malone, 502 S.W.2d 910 (Tex.Civ.App. Fort Worth 1973, no writ); White-Sellie's Jewelry Co. v. Goodyear Tire & Rub. Co., 477 S.W.2d 658 (Tex.Civ.App.Houston [14th Dist.] 1972, no writ). The provisions in a lease giving the lessor the right to re-enter the premises upon default by the lessee, and those giving the lessor a contractual landlord's lien upon the personal property of the lessee located on the leased premises, without more, do not authorize the lessor to take possession of the lessee's personal property subject to the lien. In order to enforce a landlord's lien and to obtain possession of the property subject thereto, absent consent by the lessee, the landlord must foreclose the lien by judicial proceedings, and in no other way. Schwulst v. Neely, 50 S.W. 608 (Tex.Civ. App., 1899, no writ). When the lease is silent with respect to the taking of possession of personal property subject to the landlord's lien, if the lessor-landlord, without resorting to legal proceedings to foreclose the landlord's lien, takes possession of the lessee-tenant's personal property situated on the leased premises without the consent or permission of the tenant-lessee, he is, generally speaking, subject to liability for conversion. 35 Tex.Jur.2d, Landlord and Tenant, §§ 158, 159. It is a well-established rule at common law that a landlord-lessor cannot terminate the written lease of his tenant-lessee for breach of a covenant in the lease without first making a demand upon the tenant for such performance. It is only where the lease contains an express waiver of demand that the common law rule can be disregarded. Wutke v. Yolton, 71 S.W.2d 549 (Tex.Civ.App.Beaumont 1934, writ ref'd); Shepherd v. Sorrells, 182 S.W.2d 1009 (Tex.Civ.App.Eastland 1944, no writ); Gray v. Vogelsang, 236 S.W. 122 (Tex.Civ.App.Galveston 1921, no writ). It is quite clear from the record that the taking of possession and control of McVea's cattle by Verkins on November 7, 1977, cannot be justified on the ground that Powers had a right to possess the cattle pursuant to a valid agister's lien under the 532 provisions of Tex.Rev.Civ.Stat.Ann. art. 5502 (1958), as asserted by Verkins and Powers. The lease between the parties was not for the furnishing by the defendants of any feed, supplies, services or labor in connection with the care of the cattle placed by McVea on the leased premises. The lease shows conclusively that McVea, as lessee, was given exclusive and absolute control over the cattle operation; therefore, the statutory agister's lien was not available to Powers, since he, the lessor, was not authorized to (and did not) feed, take care of, or attend the cattle at any time prior to the "locking-out" of McVea on November 7, 1977. Day Ranch Co. v. Hubert & Woodward et al., 32 S.W.2d 252 (Tex.Civ.App. Austin 1930, writ ref'd); Hindes v. Lock, 259 S.W. 156 (Tex.Comm'n App. 1924, opinion adopted); Caprock Industries, Inc. v. Wood, 549 S.W.2d 430 (Tex.Civ.App. Amarillo 1977, no writ). In the case before us in this appeal, though the lease gave Powers (lessor) the right to re-enter and take possession of the leased premises on default of payment of rent, or upon breach of any covenant "made" in the lease, there is no provision therein which waived the demand and notice requirements imposed by law. The legal significance of the absence of a waiver of demand provisions in the lease herein involved is that Powers, the owner of a contractual landlord's lien, was required to make demand for performance before exercising any right of re-entry, even though a right of re-entry was expressly provided in the lease, and such demand was further required to be made in accordance with the common law. Shepherd v. Sorrells, supra, at page 1012. Since the defendants did not make a formal demand for the payment of past due rent and did not make a formal demand for possession of the land for breach of covenant in accordance with the common law rule, the re-entry and the taking of possession of the 479 acre tract of land was not warranted on the ground that McVea had defaulted in the covenant to pay the rent on the day it became due (November 1, 1977), or because of breach of covenant. The only formal demand for the payment of rent and for possession of the leased premises was made in the aforesaid letter of November 9, 1977. The contractual rights of Powers to cancel or terminate the lease for breach of covenant by McVea is the right to do so in the manner provided by law, and this Court will not, in aid of a cancellation of the lease here involved, imply a waiver of demand and notice. There is no evidence that McVea consented to the taking of possession of his cattle by Verkins on November 7, 1977, or that he consented to his being "locked-out" of the leased premises on that day. There is no basis for the defendants' assertion that their conduct on the day in question did not exclude the exercise of any rights by McVea with respect to the cattle. The testimony of McVea to the effect that he would be shot if he was caught on the leased premises and that he was told not to do anything with respect to the cattle until after he had heard from Verkins stands unchallenged. The defendants admitted that Verkins threatened McVea "with criminal trespass if he were to go on the property." The claim by the defendants that they had a right to possess the cattle on November 7, 1977, "pursuant to a valid landlord's lien on the cattle" is without merit. The lease, as written, provides for a landlord's lien upon all personal property of lessor, not upon all personal property of lessee. That fact was ignored by the parties at the trial of this case and all parties tried the case as if the lease provided for a landlord's lien upon all personal property of the lessee. In view of our disposition of this appeal, it is not necessary that we elaborate further on that matter. The security of a landlord's lien is one thing and the foreclosing of such a lien by simply taking possession of personal property on the leased premises is something else. The further contention that the act of changing the locks was required in order to secure a reasonable time to investigate the rights of the parties is also without merit. The rights of the parties were fixed by the terms of the lease itself and by the laws of this State. Moreover, an investigation 533 of the legal rights of the parties was completed on November 9, 1977, when Powers wrote the above mentioned letter to McVea. That letter speaks for itself. The defendants, in their brief, say: "[t]he defendants were merely exercising their legal right to protect their property from imminent destruction by the plaintiff (and concomitantly, therefore they were not acting `unlawfully or wrongfully') by placing new locks on the gate and directing the plaintiff not to enter the property without notifying the defendants." There is no evidence in the record that Verkins or Powers, at any time, told McVea not to enter the property "without notifying the defendants." To the contrary, it is undisputed that Verkins told McVea not to enter the leased premises, and that if he was caught thereon he would be shot. With respect to "notifying," it is conclusively established that Verkins told McVea that he (Verkins) would notify him (McVea) "within three or four days," and further told him that "we will notify you about getting your cattle out." It is established absolutely that McVea did receive further notice in the form of Powers' letter, dated November 9, 1977. That letter, in no uncertain terms, "notified" McVea that he would not be permitted "to enter in and upon the property." No mention of the cattle was made in the letter, and Verkins did not "notify" McVea of anything concerning the cattle. Under the existing circumstances, McVea was not under any duty to contact the defendants concerning his cattle. The conduct complained of consists of two separate and distinct acts of Verkins on November 7, 1977. First, he changed the locks on the gates, which deprived McVea of access to his cattle. Second, his order to McVea also deprived the latter of access to his cattle. Verkins' acts of November 7, 1977, were deliberate and intentional. The defendants attempt to justify those acts under the rubric of "self-help." They rely on Yarborough v. State, 66 Tex.Cr.R. 311, 147 S.W. 272 (1912); Vann v. State, 43 Tex.Cr.R. 244, 64 S.W. 243 (1900); Sims v. State, 36 Tex. Cr.R. 154, 36 S.W. 256 (1896); Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Hampton v. Sharp, 447 S.W.2d 754 (Tex.Civ.App.Houston [1st Dist.] 1969, writ ref'd n. r. e.); Redmon v. Caple, 159 S.W.2d 210 (Tex.Civ.App.Texarkana 1942, writ ref'd w. o. m.); and Ater v. Ellis, 227 S.W. 222 (Tex.Civ.App.Amarillo 1921, writ dism'd). Those cases are distinguishable from the case at bar in that the "defender" in each case was in possession of the involved property and the threat of destruction was imminent. That is not the case before us in this appeal. Here, the owner-landlord was not in possession of the leased premises, and there was no threat of imminent destruction of the property on November 7, 1977. Harm to the property was already an accomplished fact as a number of trees had already been cut, but, on the day in question no one was cutting any timber. We recognize that there existed a possibility that someone in the future might attempt to remove the timber that had already been cut and might also resume the cutting of wood. However, the threat of such removal and additional cutting did not appear to be imminent under the guise of self-help to the extent that Verkins was entitled, in protecting the timber from further destruction, to deprive McVea of his right to possession of his cattle. In addition to the testimony already noted, Verkins also testified that McVea, after having admitted to cutting wood "for barbequing," then "hung his shoulders and said: `Mr. Billy, Mr. Billy I am sorry, Mr. Billy.'" That attitude, in our opinion, does not suggest that Verkins was suddenly confronted with an imminent destruction of timber by McVea. It is undisputed that on November 7, 1977, persons other than McVea and the defendants had keys to the old locks in the gates. It is also undisputed that Verkins, at the time he changed the locks, had no evidence that McVea was the person who had cut the wood. Even assuming that Verkins was warranted in concluding that McVea had cut wood on the leased premises, and assuming 534 further that he had reasonable grounds to believe that McVea would continue to do so unless something was done to stop him, there were ample and speedy lawful means and remedies available without resort to self-help. The defendants made no attempt to stop the timber-cutting by resort to the courts. Instead, Verkins took matters into his own hands and acted as judge, jury and executioner. No emergency existed which warranted such drastic action. This case illustrates the problems caused by too much reflex and too little thought on the part of a landowner's agent. The act of changing the locks and the act of ordering McVea not to go on the leased premises were distinct acts of dominion wrongfully asserted over McVea's personal property, and amounted to a conversion of the 80 cows, 30 calves and 2 bulls as a matter of law. Neyland v. Brammer, 73 S.W.2d 884 (Tex.Civ.App.Galveston 1933, writ dism'd); Lawson v. Townsend, 25 S.W.2d 170 (Tex.Civ.App.El Paso 1930, writ dism'd); Cox's Bakeries of N.D., Inc. v. Homart Develop. Corp., 515 S.W.2d 326 (Tex.Civ.App.Dallas 1974, no writ); Eisemann v. Emmons, 399 S.W.2d 428 (Tex. Civ.App.Eastland 1966, no writ); Fenberg v. Fenberg, 307 S.W.2d 139 (Tex.Civ. App.Amarillo 1957, no writ); Harnden v. McKinney, 103 S.W.2d 869 (Tex.Civ.App. San Antonio 1936, no writ); Kilgore v. De Vault, 82 S.W.2d 1048 (Tex.Civ.App. Beaumont 1935, no writ); Henderson v. Beggs, 207 S.W. 565 (Tex.Civ.App.Fort Worth 1918, no writ); Crawford v. Thomason, 53 Tex.Civ.App. 561, 117 S.W. 181 1909, writ ref'd. Since the taking of possession of McVea's cattle was wrongful, McVea was not required to demand a return of the cattle before filing suit. Furthermore, the defendants could not have returned all of the cattle, had such a demand been made; this fact was known to all parties long before this suit was filed; therefore, a demand would have been useless. It is undisputed that the defendants were in actual possession and control of all the cattle from and after the changing of the locks until December 1, 1977, when 40 cows and 18 calves were sold by the defendants at public auction. It is further conclusively established that an indeterminate number of McVea's cattle died between November 7, 1977, and December 1, 1977. McVea's first, second and third points are sustained. McVea, in this appeal, does not attack the jury's finding that there were 80 cows, 30 calves and 2 bulls on the leased premises on November 7, 1977, nor does he complain of the jury's finding that the defendants' acts of November 7, 1977, were not malicious. The jury found that the value of the cattle "on or about November 7, 1977" was "$17,787.59." There is some evidence that some of the cows may have had "Bang's Disease" on November 7, 1977. There is also some evidence that the fair market value of a healthy cow was from $225.00 to $350.00 in early November, 1977, while the fair market value of a cow that had "Bang's Disease" was considerably less. On December 1, 1977, 40 cows were sold by the defendants at an average sale price of $173.09 per head and 18 calves were sold at an average sale price of $100.47 per head. There is no evidence relating to the cattle market quotations on or about November 7, 1977, nor is there any evidence as to the value of McVea's cattle had they been offered for sale as a "herd" on the date of their conversion. We believe that there was some evidence to support the jury's finding that the "fair market value" of the cattle on November 7, 1977, was $17,787.59," but, after carefully reviewing, considering and weighing all the evidence, we hold that the evidence is factually insufficient to support the finding and that the same is against the great weight and preponderance of the evidence. McVea's tenth point is overruled, but his eleventh and twelfth points are sustained. Our holdings in this case make it unnecessary for us to consider McVea's remaining points. The judgment of the trial court is reversed. Judgment is here rendered that the acts of defendants on November 7, 1977, constituted a conversion of McVea's cattle 535 as a matter of law, and the cause as to actual damages which resulted from the conversion of the 80 cows, 30 calves and 2 bulls, is remanded to the trial court for a new trial. See Neyland v. Brammer, supra. The defendants, in any judgment which may be rendered against them following the new trial, are entitled to an offset of $9,607.93. REVERSED and RENDERED in part; REVERSED and REMANDED in part. NYE, C. J., dissents. NYE, Chief Judge, dissenting. I respectfully dissent. Viewing the evidence most favorably to the jury's verdict, I would find that there was not, in fact, a conversion. In Re King's Estate, 244 S.W.2d 660 (Tex.Sup.1951).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520005/	587 S.W.2d 746 (1979) FORT WORTH NEUROPSYCHIATRIC HOSPITAL, INC., Appellant, v. BEE JAY CORPORATION, Appellee. No. 18120. Court of Civil Appeals of Texas, Fort Worth. July 12, 1979. Rehearing Denied September 20, 1979. Second Motion for Rehearing Overruled October 18, 1979. 748 Garrett & Burkett and Mike R. Burkett, Fort Worth, for appellant. Staples & Foster and Ross T. Foster, Hurst, for appellee. OPINION MASSEY, Chief Justice. Bee Jay Corporation, hereinafter termed Bee Jay, brought suit against Fort Worth Neuropsychiatric Hospital, Inc., hereinafter termed Hospital, for damages because of breach of contract. Trial was to a jury, upon the verdict of which judgment was rendered for Bee Jay for $122,700.00 in damages. Such amount was that by which Bee Jay suffered loss of rentals from a Dr. Dolenz because of Hospital's breach. Hospital appealed. We affirm. We have heretofore had an aspect of the case under consideration. Bee Jay Corp. v. Fort Worth Neuropsychiatric, 557 S.W.2d 161 (Tex.Civ.App.Fort Worth 1977, no writ). Upon that occasion our holding was that disposition of the case by a summary judgment was improper; that issues existed making the case one which should be tried on the merits. Such a trial did follow, and it is from the judgment rendered therein that the instant appeal is presented. Observed in our former opinion was that the claim of Bee Jay was that Hospital had violated a sales contract; that the suit of Bee Jay was for Hospital's breach of contract. Important in the consideration of the appeal is to recognize that rule of law relative to the Statute of Frauds, to-wit: the inhibitory provisions of the statute shall not apply where a fraud would result if repudiation of an oral contract were permitted or where the case is such that the non-enforcement of the contractor the enforcement of the statutewould, itself, plainly amount to a fraud. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921). As it should, the law has supplied a positive rule to insure that an exception to the statute is provided for the prevention of an actual fraud, as distinguished from a mere wrong, which if not prevented would foreclose relief for actual harmful loss. Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267 (1961). See also "Moore" Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972); and cases annotated under Tex.Dig., "Estoppel". "(Representations)-Future events". In the instant case Bee Jay has no right to relief by way of rescission of contract because title to the realty involved has passed into the hands of third persons. However, relief by recourse to remedy of damages for breach of contract is available if the Bee Jay right to make proof by parol evidence is proper, and suffices to prove that character of action. Were that not so there would remain available to Bee Jay the equitable remedy of restitution. Where one person is accountable to another on the ground that otherwise he would unjustly benefit or the other unjustly suffer loss remedy is available in equity if not at law. See Restatement of the Law, Restitution (1937). One reason for our expression upon the law, stated in the paragraph in which we cited Hooks, Kirk, and "Moore" Burger, is because in the instant case there was an erroneous written lease involved, to be hereafter detailed, and that contract is unenforceable as a writing (as a written lease) because of misdescription of property intended 749 to be leased. That lease, from Bee Jay to a Dr. Dolenz, was for an initial five year period beginning January 1, 1970, plus option for Dolenz to renew and extend the same for a period of five years at same rental as before, to-wit: $1,500.00 per month. The location and identification of the premises stated to be leased was erroneously stated to have been in a Block 3 of a particular survey, when that actually intended as the premises was in a different block. Dr. Dolenz did actually enter upon the premises intended to be leased to him by Bee Jay. He had occupied the premises for over a year before the events which gave rise to the litigation took place. In other words, what we attempt to show is that Dr. Dolenz and Bee Jay understood and took action upon that as to which they had contracted. There has never been dispute between Dr. Dolenz and Bee Jay over their agreement of lease. Indeed Bee Jay, though a corporation, has at all times in fact been the alter ego of Dr. Dolenz, who was its president and owner of all the Bee Jay stock. Materiality of that fact does not exist in this case. No fraud was accomplished or even attempted by a misuse of the Bee Jay relationship by Dr. Dolenz as its alter ego. No one was ever thereby deceived to his prejudice. Furthermore, until about February 10, 1971, Hospital was also the alter ego of Dolenz, who was its president and owner of all the stock. Materiality of that fact is not a factor in this case. Background information would serve to clarify what might seem to be a very complicated situation. Reflected in the record is that in the conduct of the business of a psychiatric hospital the hospital frequently desires that physicians in psychiatric practice maintain offices upon its premises; of course that means those physicians whose patients in sufficient number to become profitable to the hospital are directed to be hospitalized or are expected to be so directed. Therefore, it is probable that even without any contract relative thereto Dr. Dolenz would have been supplied with substantially the same office premises as those deemed to have been provided by contract of Bee Jay. That is, it would have been probable up to the time circumstances of dispute developed, about two and one-half years later, when Dr. Dolenz' personal difficulties with new management of Hospital resulted in the ouster of Dolenz. In further simplification: Dr. Dolenz, as a businessman, was interested in handling his affairs in such manner as to minimize the amount of his taxes. In the accomplishment of such objective of "tax avoidance" (as contrasted with "tax evasion" which would be improper) he caused corporations to be formed of which he became sole owner, and as to which he was the alter ego. It was primarily for tax purposes he formed the two corporations, Hospital and Bee Jay. Therein lies the "key" to Dolenz' rather loose handling of the affairs of both corporations. Different parcels of realty, the whole of which was generally used by Hospital for hospital purposes, apparently was owned by Bee Jay and Dolenz. Bee Jay owned some of them and Dolenz owned others. None was jointly owned. Dolenz, as an individual, knew the premises he would occupy on Hospital's premises. Hospital as alter ego of Dolenzknew what premises Dolenz would occupy. Bee Jay, also alter ego of Dolenz, was in accord and fully informed. It was for tax purposes that there was agreement of these relative to the occupancy of Dolenz; hence it initially was of small importance that the premises be properly described in the lease which, purportedly, was of premises Bee Jay had the right to lease and the right to receive rents from Dolenz as Bee Jay's tenant. If the premises proved to have been erroneously described (as it was) and, if that proved to be important to be corrected, it was thought by these parties that no problem would be presented for they might easily accomplish such. To them what was important (for tax purposes) was that there be something written as evidence for the tax collector that there was the $1,500.00 monthly rentpayable to Bee Jayand not the free occupancy by Dr. Dolenz. Whether the parties' agreement was formally or informally made there was meeting 750 of the mindswhatever the object sought to be thereby accomplishedof the two corporations with one another and with Dr. Dolenz. This meeting of the minds was upon the matter of the leased property, the lease period, and upon the Bee Jay entitlement to receive monthly rents at $1,500.00 as from Dolenz. Consideration for the agreement was not a problem for it could be found existent, andas applied to the rights of Bee Jaymight be found existent in its capacity as a third party beneficiary of the contract of Dolenz and Hospital. Hereinabove described is presented the situation when a California domiciled corporation, the Neuro-psychiatric Hospital and Health Services, Incorporated, became interested in the purchase of all the stock of Hospital plus purchase, for Hospital, as its wholly owned subsidiary, all the real estate of Bee Jay and of Dolenz. In general chronological order, the factual circumstances were shown to have been: 1. As of January, 1970, Dr. Dolenz and Bee Jay owned all the properties proximate to the corner of West Magnolia and South Adams Streets in Fort Worth, all generally referred to as 1066 West Magnolia, and being premises which may be treated as leased by Hospital, except for a part thereof leased to Dr. Dolenz by Bee Jay pursuant to an agreement made one and one-half months prior. (This was the lease which failed as a "writing". Nevertheless our holding is that it, or the oral contract of which it was intended to be a memorandum, never failed as a lease upon the premises intended for the period and upon the terms therein prescribed.) 2. The agreement effective as of 1 January, 1970 between Bee Jay and Dolenz relative to the aforesaid premises, (occupied and in use by Dolenz from that date), was one by which he was obligated to pay Bee Jay rent at $1,500.00 per month for an initial lease period of 5 years, with option for Dolenz to renew and extend for an additional 5 years. What this amounted to was an oral lease because of the failure of the written instrument to describe the premises constituting the actual subject of their contract. Neither Bee Jay nor Dolenz ever owned the property described in the "writing". (A question exists upon whether it was Bee Jay or Dr. Dolenz who owned the property intended to be leased. In the circumstances of this case we deem the question immaterial.) Consideration to Bee Jay as its return performance was for Hospital to permit Dolenz to remain on premises occupied by his contract with Bee Jay, with Bee Jay to have the rent from Dolenz at $1,500.00 per month and for Hospital to receive nothing in the form of rentals. At no time did Hospital ever claim any right to receive rent. 3. About 1 February, 1971, the California domiciled organization, Neuro-psychiatric Hospital and Health Services, Incorporated, became interested in the operations of Hospital. Through its officers and attorney (that is those who were the officers and attorney at the time) they became acquainted with the true situation existent as described above. The officers and attorney of such corporation were aware that Dr. Dolenz, as an individual, officed in a building on the hospital premises; that his tenancy was under agreement by Hospital that he have the right, by his agreement of lease with Bee Jay, and that by such agreement any entitlement to rent from Dolenz, at $1,500.00 per month, was a right of Bee Jay and not of Hospital; that term of the agreement of Dolenz tenancy was for the initial 5 year period from January 1, 1970, with Dolenz' right to renew for 5 years at same rent. 4. Neuro-psychiatric Hospital and Health Services, Incorporated, the California domiciled corporation, at all times having notice and knowledge as stated above, made a deal with Dolenz and Bee Jay. It was to acquire from Dolenz, as owner of all the stock of Hospital and as fee owner of some of the real estate 751 used in the hospital operations, the entire stock of Hospital (so that it would be a wholly owned subsidiary of the California domiciled corporation); and at the same time obtain from Dolenz and Bee Jayfor Hospital, as its wholly owned subsidiary,title to all the realty used in its business. The consideration to Dolenz in exchange was agreed to be 80,000 shares of stock in the California domiciled corporation plus option to acquire more at a prescribed price. For Bee Jay the consideration in exchange for its realty was for Hospital to honor its contract with Dolenz and Hospital to the effect that Dolenz be tenant on the premisesnow owned by Hospital in feeunder the provisions of contract existent between Bee Jay and Dolenz. 5. The transactions were consummated. Pursuant to consummation Bee Jay and Dolenz transferred all the real estate to Hospital as the newly constituted wholly owned subsidiary corporation. Dolenz received his stock in the parent corporation. The officers of Hospital remained the same. Dolenz' position as president was reconfirmed at meeting of the board of directors of Hospital. After this time the hospital business which had theretofore been conducted from the premises continued as before to all outward appearances and for all essential purposes; the difference being that Hospital (all of the stock in which was owned by the corporation domiciled in California) from time of the consummation of the transactions held the legal title to the premise. 6. 9 February, 1971, at a board meeting of Hospital (immediately prior to consummation) there was written into the minutes and subscribed (by Dolenz), relative to the consideration Bee Jay would receive for its property (acquired the day following): "[T]he only compensation the BEEJAY CORPORATION is receiving is continuation of a lease with Dr. Bernard Dolenz for $1500 a month.... Dr. Dolenz will not pay additional rentals to the Fort Worth Neuropsychiatric Hospital since this was part of the agreement and consideration of the BEEJAY CORPORATION to release said properties without compensation." 7. Following the transaction(s) in early 1971 (whereby the California domiciled corporation became owner of all the stock in Hospital, with Hospital becoming the fee owner of the land from which its business was conducted) by deeds executed February 10, 1971, there was, with the concurrence of the parent California domiciled corporation, a board meeting of the officers of Hospital as the wholly owned subsidiary. Thereat there was re-election and re-confirmation of the corporate officers as theretofore constituted. Dr. Dolenz was reconfirmed as president. As part of the minutes reduced to writing and signed officially by Dolenz was the following: "Dr. Dolenz will continue to pay rent to the BEEJAY CORP. of $1500 monthly as per agreement of February 9." The reference was intended to mean either the Hospital meeting of February 9, 1971, or the corporate meeting of Bee Jay's board of directors on February 8th, 1971, (or which reflected that date). In the minutes of Bee Jay's meeting there was the following recitation: "The BEEJAY CORPORATION will continue the lease agreements with Dr. Bernard Dolenz for $1500 a month per the lease agreement dated November 1969, as additional compensations for the sale and release of the real estate comprising the hospital operation." 8. 10 February, 1971, was apparent consummation date for the entire transaction, or transactions, here involved. The question exists, was Hospital's ownership and occupancy lawfully burdened by and subject to an agreement of lease made by Bee Jay and Dolenz; and was that fact provable as "without" the statute of frauds? 9. Approximately one and one-half years later, and beginning about September in 1973, the "new" management of Hospital 752 decided to oust Dr. Dolenz from the portion of the hospital premises which he claimed right to occupy by the terms of his agreement of lease from Bee Jay. (The "new" management did not include those who had been the managers as of the prior transactions which we describe as consummated on February 10, 1971.) Dolenz resisted ouster. Hospital filed a suit in Forcible Entry and Detainer and this culminated in Dolenz being evicted. Bee Jay was intervenor in the Forcible Entry and Detainer action. 10. Following his eviction Dolenz discontinued further payments to Bee Jay as rent. Bee Jay's cause of action against Hospital was born in the Dolenz ouster. Damages claimed by Bee Jay was the amount of rent it would have received from Dolenz, or would have had the right to demand of Dolenz, except for the fact of the ouster. By its suit Bee Jay declared upon the theory of contract and sought to recover from Hospital because of its breach. In connection with the foregoing the officer(s) and attorney of the California domiciled corporationas of the time it acquired the stock of Hospitalhad by this time ceased to have such connection. New executive personnel had been selected to conduct the business of Hospital. These were the agents of Hospital who sought to oust Dolenz. On trial there was not the benefit of evidence from anyone other than Dolenz who had been an officer or attorney in February of 1971. There was nothing to controvert Bee Jay's proof that both the parent corporation and its subsidiary, Hospital, had notice of and had consented that Hospital permit and contract for continued occupancy of the premises by Dr. Dolenz, upon rental owed by him to Bee Jay, or to honor the pre-existent contractual agreements. There was nothing to contradict the Bee Jay evidence that the promised true exchange consideration for its deed to Hospital was the latter's promise to continue to accord Dolenz rights as tenant, with any right to receive rents of him to be Bee Jay's and not Hospital's. In answer to three special issues the jury found, in favor of Bee Jay, as follows: (1) There was an agreement between Bee Jay and Hospital, at time of the conveyance of the properties to Hospital on February 10, 1971, that Dr. Dolenz would have the right to remain as an occupant in accordance with the provisions of the instrument which was the lease so providing (but which, as we have shown, misdescribed the location of the premises); (2) that had he been permitted, Dr. Dolenz would have exercised his option to extend the primary period of the lease an additional five years; and (3) $36,900.00 was the amount of monies received by Bee Jay from Dolenz as rentals subsequent to February 10, 1971. (Warranting notice is that Dr. Dolenz was not made a party to this suit. By provision of the important contract of transfer by Dolenz of all his stock in Hospital he had agreed to the following: "The Transferor (Dolenz) agrees to indemnify and hold harmless Neuro-Psychiatric (transferee), its successors and assigns, from and against any and all liability, loss, cost and expense, including reasonable attorneys' fees, caused by any breach or other failure of the representations, warranties and covenants set forth in this Part III of this Agreement." It would be under this, if under any part of the agreement with the California domiciled corporation, that there would be a right to make a claim against Dr. Dolenz because a loss might be suffered by anyone as result of the judgment in this case in favor of Bee Jay. It is indicated in the briefs that such a case pends for trial. The questions which might arise thereunder are not matters for our consideration on the instant appeal.) Before considering the points of error advanced by Hospital in other complaints we will state that our conclusion is that the verdict of the jury was one which 753 sufficed upon the issues of fact to support the judgment for Bee Jay. An agreement having been found, and by the evidence indisputably breached by Hospital to the financial detriment of Bee JayBee Jay having the enforceable contractual right to receive what was contracted with the California domiciled corporation (Hospital having received deed of Bee Jay to all the Bee Jay real estate, and being the wholly owned subsidiary of the parent corporation, having full notice of the Bee Jay contractual right) and, Hospital, upon election or re-election of the same board of directors as before, having ratified the Hospital-Dolenz-Bee Jay contractBee Jay was entitled to that which it would have received had there been no breach by Hospital. It is to be observed that there was no way by which Bee Jay could have mitigated its damages if in fact there was the entitlement to receive them; and that if Bee Jay was not entitled to any consideration whatever, it necessarily must be considered to have made a free gift of its land and improvements to Hospital. This is so because for purposes proper to be considered Bee Jay and Dolenz must be viewed exactly as one would view two separate entities or individualswith Dolenz in his individual capacity having no fiduciary relation to Bee Jay. Our conclusion is that the transactions: (a) that between Bee Jay and Dr. Dolenz which created the initial rights of Dolenz to occupy the premises in question and the return right of Bee Jay to receive the rents therefor from him; and (b) the highly involved one between Bee Jay, Dolenz, and Hospital on the one hand and the California domiciled corporation on the other which was coupled with benefits to said foreign corporation, and to Hospital in its new condition as the wholly owned subsidiary corporation (to receive title to real estate which included the premises under oral lease from Bee Jay to Dolenz)both constituted transactions which, under usual circumstances, as between parties usually involved in litigation, would be transactions "within" the Statute of Frauds and unenforceable for that reason. Likewise, evidence in parol which purported to establish the parties' oral contractual rights would be inadmissible. Under the facts in this case, to enforce the defenses provided by the statute to prevent recovery by Bee Jay would be to accomplish an actual fraud upon it and, under sanction of law, to deny it any recovery for that actual harmful loss which it undoubtedly would have suffered. That to which we refer is the failure to receive that consideration promised in exchange for Bee Jay's real property, the receipt of which is affirmed by hospital (as well as the California domiciled corporation). Hospital should be estopped to deny its promise of the return consideration to which it had been committed and because of which it had received tangible benefits. We hold all transactions to be "without" the Statute of Frauds, enforceable despite the inhibitions which ordinarily would be proper to apply, with the parol evidence hearing thereupon admissible to prove the factual circumstances. In stating the above we include the phase of transaction (b) in which there must be considered to have been the oral agreement for tenancy of Dr. Dolenz for more than one year. We also include the circumstances culminating in the execution of deeds on February 10, 1971, which have application in that thereby was the agreement honored as part of the return consideration of Hospital. Ordinarily unenforceable is oral agreement for contractual performance in part which clearly could not be performed within a period of one year, when intended as consideration for a deed or lesser interest in real estate. However, ordinarily the true and actual consideration for a deed, etc., may be proved by parol by one who has fully performed his own contractual obligations. Without justification to have certain proof received in contract cases it ordinarily should be excluded where as a part of it would be shown that the return performanceon oral agreement of the other partycould not be completed within one year. Here there is justification for the receipt of the proof on trial of the case. 754 There is alternate theory by which affirmance would be proper. Considered as a mere oral promise on the part of Hospital to make compensation by way of return performance in providing the intended space on the premises to which it received title by deeds on November 10, 1971, and considered as the complete performance by Bee Jay of its part of the contract when it executed its deed, judgment in the case might be affirmed on a theory that the proper rule of construction relative to application of the statute of frauds is: "A contract which by its terms is capable of being performed within one year from the date of its making by one party, and which has been fully performed by such party within the year, is not within the statute of frauds." To that effect was the holding in City of Tyler v. St. Louis Southwestern Ry. Co. of Texas, 99 Tex. 491, 91 S.W. 1 (1906). See also 37 C.J.S. "Statute of Frauds" § 251 p. 762, "Performance by One Party" (1943). In City of Tyler, supra, there was agreement by a railway company to maintain the location of its shops in the City of Tyler in the future in consideration of deed to it of land or interests therein from the city and third persons in its behalf, with all the conveyances and transactions incident thereto fully accomplished within one year. The court held the railway company bound by contract. While perhaps not on the identical factual situation in City of Tyler, supra, there is disagreement of other Texas cases upon inferences of the statement. 6 A.L.R.2d 1053 (1949), "ANNOTATION Performance as taking contract not to be performed within a year out of the statute of frauds", and, in supplement of that previously written under the annotation, beginning at p. 1118, and supplemented on p. 1139, et seq. Generally, it is in instances where the matter of irreversible injury has not actually resulted from the breach to the party who has fully performed that the statement in City of Tyler, supra, is cast in question. There the court did not consider the matter of impropriety of use of the statute where to do so would in itself constitute a fraud, though undoubtedly it would have been appropriate for the court to have done so under the facts. In the instant case we believe the stronger reasons for holding by the transactions with which we deal here should be considered to be "without" the statute to be because if it were otherwise the statute would be used to perpetrate fraud on Bee Jay. However, irreversible injury to Bee Jay has actually resulted from the breach by Hospital, and the decision in City of Tyler, supra, fortifies our holding that the statute of frauds should not apply in this case. By holding the transactions "without" the Statute of Frauds it follows that the parol testimony objected to by Hospital was properly admitted to prove the case of Bee Jay. All of such evidence was of probative force and effect sufficient to support the judgment. As applied to the jury findings our holding is that none of them was so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous. By what is written to this point Hospital's chief points are overruled. Though Hospital presents a point of error that Special Issue No. 3 should not have been submitted, there was another point which complained of the judgment amount because Dr. Dolenz was found by the answer thereto to have paid Bee Jay less than $1,500.00 per month rent during the term of occupancy inquired about. Hospital seeks benefit because Bee Jay did not insist that Dolenz pay the amount contracted. The error is overruled as without consequence. Bee Jay could have forgiven Dolenz all failures to pay the amount of rentals agreed during his occupancy. As between Hospital and Bee Jay it would be the amount of the latter's entitlement from Dr. Dolenz from time of his ouster, had he not been ousted, that its damages would properly be measured. By evidence not in dispute, if there was enforcible obligation of Hospital to honor a lease from Bee Jay to Dolenz on the premises in question, it would be upon the right of Bee Jay to have 755 Hospital honor it as one under which Bee Jay's entitlement would be $1,500.00 per month. Answer returned to the special issue was essential to the judgment. Thereby the court was enabled to compute the amount for which a correct judgment should be rendered. A correct judgment amount was thereby computed. The issue actually amounted to a defensive special issue. Heretofore mentioned was that there had been litigation between Hospital and Dr. Dolenz in a case of Forcible Entry and Detainer action. The final result, despite the entry of Bee Jay as intervenor in the action, was Hospital's successful ouster of Dolenz. Hospital contends that by reason of the foregoing Bee Jay's cause of action was barred (as by a prior action) from seeking the recovery awarded by judgment in this case. By Tex.R.Civ.P. 746, "Only Issue", is provided that the only issue to be tried in such a proceeding is the right of plaintiff to possession of the premises from which the defendant is sought to be evicted. Tex.Rev.Civ.Stat.Ann. art. 3994 (1966), "No bar" provides that such proceedings would not amount to a bar of certain other actions. Of these the provisions are sufficient to encompass the suit of Bee Jay. Bee Jay could not have been hampered in prosecution of the instant suit because of his intervention in the Forcible Entry and Detainer action. Because of Hospital's complaints leveled against Special Issue No. 1 we copy the same in full: "SPECIAL ISSUE NO. 1. "Do you find from a preponderance of the evidence that on February 10, 1971, at the time of the conveyance of the properties in question to Fort Worth Neuropsychiatric Hospital Inc. that there was an agreement between Bee Jay Corporation and Fort Worth Neuropsychiatric Hospital Inc. that Bernard J. Dolenz would have the right to remain as an occupant in accordance with the provisions of the instrument designated as Plaintiff's Exhibit No. 1 and Bee Jay Corporation being entitled to receive the rentals provided in said instrument? "You are instructed that an agreement may be express or implied. An express agreement is one in which the mutual assent of the parties and the terms of the agreement are expressly stated, either orally or in writing. An agreement is implied when its terms are not expressly stated by the parties, but an agreement may be reasonably inferred from, and approved by, the facts and circumstances attending the transaction. "... "ANSWER: There was such an agreement." On the foregoing the following complaints were made of Special Issue No. 1 before the trial court and upon the appeal: (a) it did not present an ultimate issue of fact as raised by the pleadings and evidence; (b) the language used constituted a comment on the weight of the evidence; (c) the instruction made a part thereof was an incorrect statement of law. Under (a) and (b) Hospital adopts the theory that the agreement about which there was inquiry was necessarily one upon which there was an original meeting of the minds of the parties on the specific date, February 10, 1971 (date of the deeds by both Bee Jay and Dr. Dolenz to Hospital), and not an agreement which might have been earlier made as to which the meeting of the minds of the parties persisted on February 10th. By the issue there was no mention or reference to any antecedent time and/or circumstances of the contract to which evidence admitted on trial had relation. However, such evidence as there was did actually relate thereto. Whether or not it was effective to transfer title to the described realty to Hospital, there was by Hospital the receipt of Bee Jay's deed as consideration due to Hospital by contractand upon consideration from Hospital promised to Bee Jay in return. Under these circumstances the jury could not have been deceived. Their finding should be given controlling effect. The inquiry must be construed to have meant 756 that persisting as of the time of the Bee Jay performance by execution of the deed the consideration agreed in exchange to Bee Jay, as due by Hospital, was the promise of Hospital that Dolenz should have the rights of a tenant on its property for the remainder of a ten year periodif option of extension was exercisedwith Bee Jay entitled to receive accrued rents by reason thereof at $1,500.00 per month. The points of error by which there is complaint are overruled. Heretofore written upon was that, as of the time for conveyances to Hospital by Bee Jay and by Dolenz, Hospital actually was (or was to be considered as of that time) the wholly owned subsidiary corporation of the parent California domiciled corporation. Hospital was "on notice" of every material fact. Through its officers it knew and agreed upon the rights and benefits both Bee Jay and Dolenz either should receive or, perhaps, had already received as the return consideration from Hospital to Bee Jay, and from Hospital and such parent corporation to Dolenz. Under (c) there is assertion to the effect that the burden of proof placed upon Bee Jay was less onerous than it should have been. It was contended that the incorrect statement of law upon express and implied contracts,was primarily because of failure to instruct the jury that necessary to the existence of contract is the mutual assent of the parties,and also because the jury was told that an implied contract could result without the mutual assent of the parties. The complaint of incorrect statement of law is overruled. The term "agreement" could not have conveyed anything different from a mutual assent of the parties. The term "agreement" means a meeting of the minds of the parties upon the subject matter. Duncan Coffee Co. v. Chiles, 136 S.W.2d 929 (Tex.Civ.App.Galveston 1940, no writ). The subject matter, of course, would be that which was consideration, or what each party should give or receive in exchange. The jury was not told that an implied contract could result without mutual assent of the parties. It was told that it might be inferred that by mutual assent of the parties there resulted an agreement of contract. It is believed that all points of error presented have been discussed. In any event, each point of error presented has been severally considered in the preparation of the opinion; all of them are overruled. Judgment is affirmed. OPINION ON MOTION FOR REHEARING Hospital has pointed out an error of fact in our opinion which it deems material and to have resulted in an erroneous legal conclusion. We did err in stating that Bee Jay did not receive anything of value for the transfer of land and improvements to Hospital other than its right to receive the rents discussed in the opinion. As pointed out by Hospital Bee Jay received (in addition) a portfolio of stock belonging to Hospital valued at $75,000.00. Pointing out that the case is one in which Bee Jay did receive benefit of the bargain made, though not the full consideration it expected, Hospital relies upon certain language of the Supreme Court to support its claim that the Statute of Frauds should be held to apply. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (Tex.1957). Cowden, according to Hospital, stands for the proposition that the Statute of Frauds cannot be circumvented if the "harm" consists of simply not receiving full consideration or the failure to get full benefit of a bargain. Upon this construction of Cowden Hospital proceeds, as we understand it, upon the theory that since Dolenz was the alter ego of Bee Jay and received further substantial consideration for the transfer of all real estate, Bee Jay had not sustained "actual loss" so as to make the transaction considered as the transfer of the Bee Jay propertyone in which the application of the Statute of Frauds to prevent recovery would result in a fraud. We have considered the authority of Cowden, along with the opinion of the Court of Civil Appeals in the same case, and along with the opinions in other cases to 757 which there was reference. We find the contention of Hospital unsound. It is obvious from the authorities that where a party in a position analagous to that of Bee Jay cannot show that "actual loss" has been or will be sustained, meaning "substantial out-of-pocket loss", the opposite party should be allowed to defeat his claim by invoking the Statute of Frauds. Here, however, Bee Jay has shown "actual loss". The doctrine of "de minimus non curat lex" stands for the proposition that law does not care for or take notice of very small or trifling matters. Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249, 255 (Tex.Civ.App.San Antonio 1978, writ ref'd n. r. e.). It was to this doctrine the Supreme Court had reference in Cowden. We certainly are ready to treat some amount of "loss" which is a mere triflefor example a matter of a few dollars, or property right which measured in money could only amount to suchas insufficient result of fraud to authorize a court to refuse to honor the Statute of Frauds. However, in this case the "actual loss" of Bee Jay is considerably more than a trifle. Involved were many months of rentals at $1,500.00 per month. This qualifies as an "additional and substantial out-of-pocket loss", sufficient cause to refuse to permit the Statute of Frauds to be invoked. As noted in the opinion, under the circumstances of this case there is no occasion to treat the fact that Bee Jay was the alter ego of Dolenz as a factor. What Dolenz received as consideration must be disregarded in viewing what Bee Jay received. Dolenz was not a party to this suit. There is a case pending in a trial court with Dolenz a party defendant, presumably a defendant against whom there will be matters litigated which are either created or enhanced as the result of the judgment which Bee Jay has obtained. The motion for rehearing is overruled.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519950/	587 S.W.2d 707 (1979) Joseph Earl THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee. No. 57333. Court of Criminal Appeals of Texas, Panel No. 1. September 19, 1979. Rehearing Denied October 31, 1979. 708 Allan R. Lazor, Victoria, for appellant. Knute Dietze, Dist. Atty. and Norman D. Jones, Asst. Dist. Atty., Victoria, Robert Huttash, State's Atty., Austin, for the State. Before ONION, P. J., and ROBERTS and CLINTON, JJ. Rehearing En Banc Denied October 31, 1979. OPINION ROBERTS, Judge. The appellant was indicted for criminal attempt to commit murder. The victim testified that she awoke to find a man kneeling beside her bed; the man put his hands around her neck and choked her. The victim's grandson came into the room and fought with the man, whom he identified as the appellant. The man dove out a window; the appellant's fingerprint was on the sill. A jury found that the appellant was guilty of criminal attempt to commit murder. The jury also found that the appellant had once before been convicted of a felony, and it assessed his punishment at confinement for life. The grounds set out in this appeal comprise claims of fundamental error in the charge to the jury. The appellant has no quarrel with the parts of the charge that define the law of criminal attempt to commit murder, or with the part that applies that law to the facts. The first part of the charge with which he finds fault is the part that read, "Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of murder." Of course, the end of the sentence should have read, "offense of criminal attempt to commit murder." The appellant made no objection to the charge. This evidently inadvertent mistake could not so have misled the jury as to constitute fundamental error. Compare Ellis v. State, 22 S.W. 678 (Tex.Cr. App.1893). The charge next instructed the jury, if they found the appellant had not a specific intent to kill, to acquit him of attempted murder and to consider the offense of aggravated assault. Compare Teal v. State, 543 S.W.2d 371 (Tex.Cr.App.1976). The charge then defined and applied the law of aggravated assault in an erroneous way.[] In two grounds of error, the appellant argues that this error was so fundamental as to call for reversal, even though he did not object to it. The part of the court's charge to which we normally look in determining whether the charge is fundamentally erroneous is the part that applied the law to the facts. Jones v. State, 576 S.W.2d 393 (Tex. Cr.App.1979). By this rule, we mean that we normally look to the part that applied the law of the offense for which the appellant was convicted. When the jury found that the appellant was guilty of criminal attempt to commit murder it had no occasion to deliberate whether the appellant was guilty of the lesser included offense. The errors in the charge on the lesser included 709 offense, for which the appellant was not convicted, could not so have misled the jury as to constitute fundamental error. Finding no fundamental error, we affirm the judgment. The sentence must be reformed, for it does not impose a minimum term as is required by the indeterminate sentence law (V.A.C.C.P., Article 42.09, Section 1). Although criminal attempt to commit murder is a felony of the second degree (see V.T. C.A., Penal Code, Sections 15.01(d) and 19.02(b)), the appellant's prior felony conviction rendered him liable to punishment for a felony of the first degree. See V.T.C.A., Penal Code, Section 12.42(b). The range of punishment for a felony of the first degree is confinement for life or a term of 5 to 99 years. V.T.C.A., Penal Code, Section 12.32. When a punishment of confinement for life is assessed under such a range of punishment, the sentence must impose the minimum term as well as the maximum. See Sargent v. State, 518 S.W.2d 807, 810 (Tex. Cr.App.1975). Such a punishment for a felony of the first degree differs from the mandatory punishment of confinement for life under V.T.C.A., Penal Code, Section 12.42(d); the sentence of the defendant punished under that statute has no minimum term. See Perez v. State, 578 S.W.2d 753 (Tex.Cr.App.1979). The sentence in this case is reformed to show a term of not less than 5 years or more than life. Sentence reformed and judgment affirmed. NOTES [] The charge actually was on simple assault, for it omitted any reference to aggravating factors.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519961/	385 A.2d 795 (1978) STATE of Maine v. Percy ROY. Supreme Judicial Court of Maine. May 3, 1978. 796 Michael D. Seitzinger (orally), Asst. Atty. Gen., Augusta, John E. Welch, Dist. Atty., Houlton, for plaintiff. Jordan & Goodridge by Donald Goodridge (orally), Houlton, for defendant. Before DUFRESNE, C. J., and POMEROY, WERNICK ARCHIBALD, DELAHANTY and GODFREY, JJ. GODFREY, Justice. In September, 1976, appellant Percy Roy was tried and convicted of the crime of taking indecent liberties in violation of former 17 M.R.S.A. § 1951 (1964). The State's evidence tended to prove that he took indecent liberties with the fifteen-and-a-half-year-old daughter of a woman he had been living with for several years. Appellant took the stand and denied the charge, testifying that there was animosity between himself and the child that grew out of his attempts to discipline her. Appellant did not place his own character in issue by introducing evidence of good character, but merely testified as to his difficulties with the child. The State cross-examined Roy about a prior conviction. Appellant's counsel objected to that cross-examination and moved for a mistrial. Denying the motion for a mistrial, the trial court admitted the testimony, instructing the jury that the testimony was to be considered only as bearing on Roy's credibility as a witness. The prior crime involved a charge which was substantially similar to the crime charged in the present case. The text of the cross-examination follows: "Q Are you the same Percy Roy who, at Edmundston, New Brunswick, Canada on the 28th day of May, 1970, was convicted of the crime in Canada of having had sexual intercourse with a Nancy Roy, knowing that she was your daughter and was sentenced to 797 a term of three years at the Maritime Penitentiary in Dorchester? A Yes, I am. Q How old was Nancy Roy? A 15." Appellant objected strongly to cross-examination about the New Brunswick conviction. His objection having been overruled, he did not specifically object to the question concerning the age of Nancy Roy. As one of his points on appeal, appellant argues that the admission of that entire testimony was reversible error. Admissibility of a prior conviction for impeachment of a witness is governed by Rule 609(a) of the Maine Rules of Evidence.[1]State v. Pinkham, 383 A.2d 1355 (Me.1978). Under the Rule, before such evidence is admitted the trial court must determine that its probative value outweighs the prejudicial effect to the defendant. In balancing the two considerations the trial court must exercise its discretion in accordance with the directives of the Rule. State v. Pinkham, supra. The provision of subsection (a)(1) of the Rule, that prior conviction of a relatively serious crime is admissible for impeachment whether or not the crime involved dishonesty, must be taken in the context of the last sentence of subsection (a), that admissibility depends upon the court's determining that the probative value of the evidence outweighs its prejudicial effect. As we pointed out in Pinkham, the probative value referred to relates to the veracity of the witness, not to some predisposition on his part to commit a crime similar to the one with which he is charged. This case is not one in which the testimony in question was offered as evidence of appellant's bad character. Such testimony is not admissible until the defendant puts his character in issue by introducing evidence of good character. Though defendant testified concerning his attempts to discipline the complainant, his testimony was offered to show animosity by her toward him. Thus, the probative value of his prior conviction must be determined solely by reference to its bearing on his general credibility. The prior conviction for incest had little bearing on the likelihood that the appellant would testify untruthfully. On the other hand, the prejudice to him in the trial of this case was especially great because of the high degree of similarity between the crime of incest and the crime with which he was charged. Two purposes lie behind the balancing test called for by Rule 609. First, the public has an interest in the fairness of trials which is served by application of evidentiary rules in a way that does not unjustifiably discourage witnesses, particularly defendants, from testifying. See United States v. Jackson, 405 F.Supp. 938, 942 (D.C.N.Y. 1975). The public interest in having the benefit of a defendant's testimony is especially strong in a case such as this one where the complainant and the accused were the only witnesses to the acts charged. Without the protection afforded by Rule 609 and the balancing of interests required by it, even a defendant who was innocent of the particular crime charged would decide not to testify rather than run the risk of having evidence of a prior conviction, especially one for a similar offense, used against him. Second, in a case where the earlier conviction and the present charge are similar, the likelihood is substantially increased that the finder of facts will make improper use of the evidence of prior conviction, that is, will use it as evidence of defendant's disposition to commit the crime rather than his general lack of credibility. When the 798 earlier crime similar to the present charge did not involve dishonesty, its bearing on defendant's veracity is so tenuous that the fact-finder is likely to have difficulty in focusing on the limited purpose for which the evidence of it is offered. We recognized the problem in several cases before adoption of the Maine Rules of Evidence, e. g., State v. Strollo, Me., 370 A.2d 675 (1977); State v. Gervais, Me., 317 A.2d 796 (1974); State v. Toppi, Me., 275 A.2d 805, 810 n.5 (1971).[2] The difficulty was compounded in the present case by additional interrogation of the defendant eliciting testimony about the length of his prior sentence and the age of the former victim. See United States v. Harding, 525 F.2d 84, 88 (7th Cir. 1975); Martin v. United States, 404 F.2d 640, 642-43 (10th Cir. 1968). The federal courts have addressed the same problem as it arises in the application of Rule 609 of the Federal Rules of Evidence on which the Maine rule is modeled. See, e. g., United States v. Jackson, 405 F.Supp. 938 (D.C.N.Y.1975). Chief Justice Burger had occasion to deal with the problem when he sat in the United States Court of Appeals in a case that arose before the Federal Rules of Evidence were adopted. He said, "A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that `if he did it before he probably did so this time.' As a general guide, those convictions which are for the same crime should be admitted sparingly . . . ." Gordon v. United States, 127 U.S.App.D.C. 343, 347, 383 F.2d 936, 940 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). In the case before us there was strong similarity between the prior conviction for incest with a fifteen-year-old daughter and the present charge of indecent liberties with the 15½-year-old daughter of the woman with whom he had been living for several years. That similarity created a great likelihood that the evidence could be put to improper use by the jury. Indeed, it would be most difficult for a finder of fact to disregard the similarity. Rule 404 of the Maine Rules of Evidence, relating to admissibility of evidence of character, though not directly applicable in this case, clearly establishes the principle that an accused must be tried for the present crime and that evidence of past crimes will not be used to show he has a predisposition to commit crimes of that sort. That principle is necessary and desirable to avoid conviction of individuals because of their reputation or past history. See Commentary to Rule 404, Maine Rules of Evidence, in R. Field & P. Murray, Maine Evidence 67-71 (1976). That principle could be served in this case only by excluding evidence of the prior conviction. A review of the factors to be considered in determining admissibility leads unavoidably to the conclusion that the trial court exceeded the limits of its discretion in its application of Rule 609. The appellant's prior conviction had little probative value with regard to his honesty as a witness. The public interest in encouraging defendants to testify was ill-served by subjecting this defendant to the admission of highly prejudicial evidence of an earlier conviction of a closely similar offense having little bearing on his veracity. The interrogation of appellant on cross-examination involved not only the fact of prior conviction but also details concerning duration of the sentence imposed and the age of the victim. In the circumstances the probative value of the 799 conviction cannot be reasonably viewed as outweighing the prejudice created by admitting the testimony. The trial court should not have admitted evidence of the conviction in this case. The entry must be: Appeal sustained. Judgment vacated. Remanded for new trial. DUFRESNE, A. R. J., sat at oral argument as Chief Justice, but retired prior to the preparation of the opinion. He has joined the opinion as Active Retired Justice. POMEROY and WERNICK, JJ., and DUFRESNE, A. R. J., concurring. DELAHANTY and ARCHIBALD, JJ., concurring in result. DELAHANTY, Justice, with whom ARCHIBALD, J., concurs, concurring in result: I agree with the majority that the appeal herein must be sustained. I do not believe, however, that it is necessaryin fact, in these circumstances it may be presumptuous for want of an articulated Rule 609 evaluation belowto reach the issue upon which the majority rests its reversal. With deference, I would rely on what appears to be prosecutorial "overkill." True, our Maine Rules of Evidence recognize that within the limits of Rule 609, the prosecution may use evidence of a prior conviction to impeach the credibility of a defendant who testifies in his own behalf. Assuming, for the nonce, that the presiding Justice correctly ruled under M.R.Evid. 609 that the defendant could be impeached by evidence of a prior conviction, an issue that need not be reached, the State exceeded the permissible scope of cross-examination. In State v. Toppi, Me., 275 A.2d 805 (1971), we suggested a permissible form of questioning on cross-examination when attacking a witness' credibility by evidence of a prior conviction. Are you the same . . . who was convicted of the crime of . . . in the Superior Court for . . . County on . . . . Id. at 813. In the instant case, the prosecution did not so confine the cross-examination but also inquired into the length of the defendant's conviction. More egregiously, the question disclosed details of the crime including the relationship of the defendant to the female victim and her name and age. Given the circumstances of this case, the nature and breadth of such inquiry were highly improper and alone are sufficient to warrant a new trial. Tangential questioning is considered impermissible for two reasons: First, it leads to an unnecessary delay in the trial. Second, it introduces extraneous and possibly prejudicial or inflammatory matters unrelated to the effort of properly discrediting the defendant as a witness. Martin v. United States, 404 F.2d 640 (10th Cir. 1968). Although we have never intimated that the form of question approved in State v. Toppi, supra, is a shibboleth which must be blindly and precisely followed, in the absence of extenuating circumstances any substantial departure from inquiring about the name of the crime and the time and place of conviction is improper for the above-mentioned reasons. Accordingly, the gross departure by the prosecution from acceptable inquiry is quite sufficient to warrant reversal. NOTES [1] Maine Rules of Evidence, Rule 609: "(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime (1) was punishable by death or imprisonment for one year or more under the law under which he was convicted, or (2) involved dishonesty or false statement, regardless of the punishment. In either case admissibility shall depend upon a determination by the court that the probative value of this evidence outweighs the prejudicial effect to the defendant." [2] A party who proposes to offer evidence of prior conviction of a witness to be called by the adverse party is reminded of our admonition in State v. Toppi, Me., 275 A.2d 805, 813 (1971), that the question of its admissibility should be first presented to the presiding justice in the absence of the jury. A party who wishes to exclude evidence of prior convictions of his witness should seek such exclusion by a threshold motion. Among other things, such procedure avoids any question that the issue has been properly raised.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519991/	254 Pa. Superior Ct. 262 (1978) 385 A.2d 1010 COMMONWEALTH of Pennsylvania v. Curtis DIGGS, Appellant (two cases). Superior Court of Pennsylvania. Argued December 12, 1977. Decided April 28, 1978. 263 Stephen M. Karp, Philadelphia, for appellant. L. Davis, Philadelphia, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. PRICE, Judge: Following a non-jury trial on October 9, 1975, appellant was convicted of burglary[1] (two counts), robbery[2] (two counts), aggravated assault,[3] conspiracy[4] and possession of an instrument of crime.[5] Post-trial motions were denied, and appellant was sentenced to a term of two to four years imprisonment. No direct appeal was taken, but a petition under the Post Conviction Hearing Act[6] was subsequently filed. Following a PCHA hearing, the court found that appellant had been denied his right to appeal and therefore granted him the right to a nunc pro tunc appeal to this court. The PCHA court, citing Commonwealth v. Webster, 264 466 Pa. 314, 353 A.2d 372 (1975), and Commonwealth v. Drummond, 238 Pa.Super. 311, 357 A.2d 600 (1976), did not reach the other issues raised by appellant. The factual background of this matter is as follows. On January 13, 1975, Mr. and Mrs. John Power were robbed in their home in Philadelphia. Mrs. Edna B. Smith was subjected to similar depredation on January 22, 1975. Both episodes involved three men who gained entrance, by ruse, to the dwellings of elderly persons. Once inside, the men beat and robbed their victims. During the January 22nd incident, Philadelphia police were called to the scene. Officers McGurk and Hunter knocked on the door of Mrs. Smith's apartment and were admitted by the eighty year old victim. Two of the robbers escaped through a third floor window while the third hid in a closet. Officer McGurk pulled the man from the closet, but the robber, after a struggle, managed to escape through a window. Officer Hunter, who had gone to the street below in pursuit of the escaping duo, observed the third man, gave chase and quickly apprehended him. Officer McGurk arrived a few seconds later. Appellant was arrested and transported to West Detective Division. At trial, Officer McGurk positively identified appellant as the man with whom he had wrestled in Mrs. Smith's apartment. At West Detective, appellant was given his rights and interrogated by Sergeant Saltzman. Appellant gave an oral statement admitting his participation in the robbery of Mrs. Smith and the earlier robbery of the Power home. Sergeant Saltzman took down the gist of the statement in longhand, but this written version was not signed by appellant. At trial, Sergeant Saltzman used his notes to recount the substance of appellant's confession. Two of the robbery victims, Mr. Power and Mrs. Smith, testified at appellant's preliminary hearing. Neither was able to identify him and neither was cross-examined. On July 24, 1975, appellant's pre-trial motion to suppress his statement as involuntary was heard and denied. Although the preliminary hearing and the suppression motion were 265 conducted by the same defense counsel, appellant had a different attorney at trial. This defense counsel stipulated to the introduction of the preliminary hearing testimony of Mr. Power and Mrs. Smith, neither of whom appeared. Three grounds for relief are alleged in this appeal: (1) the ineffectiveness of trial counsel, (2) the ineffectiveness of counsel at appellant's suppression hearing, and (3) the refusal of the court below to suppress appellant's statement as involuntary. We turn first to the suppression issue. "It is well-established that on review from a finding of voluntariness, we must consider the Commonwealth's evidence and so much of the evidence presented by an accused as remains uncontradicted. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968)." Commonwealth v. Smith, 470 Pa. 220, 222, 368 A.2d 272, 273 (1977). Appellant testified that during his interrogation he was punched, kicked and had a chair thrown at him. According to appellant, his statement to the police was physically coerced and had no truth in it. Sergeant Saltzman, on the other hand, testified that appellant was informed of his rights, that he was in no way mistreated and that he answered questions voluntarily. The suppression court found that appellant had been accorded his Miranda rights, that his statements had not been the result of unnecessary delay between arrest and arraignment, and that the Commonwealth had established the voluntariness of the statements by a preponderance of the evidence. Our review of the record reveals no basis upon which to overturn that determination. Appellant argues that trial counsel was ineffective for failing to interview potential alibi witnesses, failing to present an alibi defense, and failing to introduce witnesses to establish that none of the victims had identified appellant. At the PCHA hearing, trial counsel testified that an investigator from the public defender's office had contacted five potential alibi witnesses whose names were provided by appellant and that only appellant's brother, Jeffrey Diggs, 266 was able to provide alibi testimony. Defense counsel spoke with Jeffrey Diggs before and at trial, but could not recall if she had discussed the possibility of an alibi defense with him. At trial, Diggs testified only to appellant's physical condition prior to his arrest. This testimony was to support appellant's claim that he had been beaten by the police. Jeffrey Diggs' PCHA testimony was that appellant had been with him in their family home at the time Mrs. Smith's apartment was robbed, and that appellant left that location only minutes before he was apprehended by the police. Diggs also stated that no one from the public defender's office contacted him from the time of appellant's arrest until the date of trial. It is also asserted that trial counsel was ineffective for failing to attack the lack of identification of appellant by any of the victims. Trial counsel explained in her PCHA testimony that she stipulated to the admission of the preliminary hearing testimony of Mr. Power and Mrs. Smith[7] because no identification of appellant was contained therein and because she thought the sympathy evoked by the presence and testimony of the elderly victims might weigh heavily against appellant. Defense counsel argued the issue of identification to the court in her closing. Appellant contends that counsel could have emphasized the absence of any identification without having the victims testify, by calling one of the police officers who had witnessed Mrs. Smith's inability to recognize appellant when he was returned to the scene of the robbery immediately following his arrest. Appellant's claims of ineffective assistance cannot be resolved from the trial record. Further, because the PCHA court followed the teaching of Commonwealth v. Webster, supra, and Commonwealth v. Drummond, supra, we do not have its evaluation of the credibility of the witnesses nor its decision on the merits of the issues. This case is therefore *267 remanded for an evidentiary hearing on these matters,[8]see Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). If it is found that appellant was deprived of effective assistance, a new trial shall be ordered. If, on the other hand, appellant's representation was not ineffective, the judgment of sentence shall be reinstated. Following the decision of the hearing court, the aggrieved party may appeal to this court. Commonwealth v. Twiggs, supra. WATKINS, former President Judge, did not participate in the consideration or decision in this case. NOTES [1] 18 Pa.C.S. § 3502. [2] 18 Pa.C.S. § 3701. [3] 18 Pa.C.S. § 2702. [4] 18 Pa.C.S. § 903. [5] 18 Pa.C.S. § 907. [6] Act of January 25, 1966, P.L. (1965) 1580, § 1 [19 P.S. § 1180-1 (Supp. 1977-78)]. [7] Mrs. Power did not testify at the preliminary hearing or at trial. [8] We have not discussed the claimed ineffectiveness of appellant's suppression hearing counsel. This issue should also be resolved in the evidentiary hearing.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520292/	486 S.W.2d 268 (1972) STATE of Missouri, Respondent, v. Connie JASPER, Appellant. No. 54996. Supreme Court of Missouri, En Banc. November 13, 1972. 269 John C. Danforth, Atty. Gen., Gene E. Voigts, First Ass't. Atty. Gen., Jefferson City, for respondent. J. Arnot Hill, Robert G. Duncan, Pierce, Duncan, Hill & Russell, Kansas City, for appellant. FINCH, Chief Justice. Defendant and three other men were indicted for murder in the first degree. Defendant Jasper, separately tried, was convicted of murder in the second degree and sentenced to imprisonment for 40 years. An opinion affirming the conviction was written in Division I of this Court, but a rehearing was granted and the case subsequently was transferred to the Court en Banc where it was reargued. We have jurisdiction because this case was pending here prior to January 1, 1972. Article V, § 31, Constitution of Missouri, V.A.M.S., as amended. We reverse and remand. 270 A jury could reasonably find from the evidence that on the afternoon of February 15, 1969, four armed men, including defendant, robbed George's Market in Kansas City. As they emerged from the market, with guns in hand, they were observed by (and apparently themselves observed) a police officer in a marked patrol wagon stopped on the street in front of the store. At that, the four men fled, two on foot and two (defendant and one Charles Beal) in an automobile which had been parked nearby. As the automobile, with Beal driving, started to drive away, defendant ran and jumped in the car. The police officer called to them to halt, and also fired two shots at the car, one of which struck and shattered the rear glass. A high-speed chase followed and continued for a few blocks until the car driven by Beal violated a traffic signal at 35th and Van Brunt, colliding with another automobile in the intersection. Ward Wooderson, owner of the other car, and two occupants therein were killed. The indictment against defendant charged first degree murder in common form, alleging that defendant and others unlawfully, wilfully, deloniously, premeditatedly, deliberately, and with malice aforethought made an assault on Ward Wooderson with an automobile by driving the same with great force and violence against the automobile occupied by Ward Wooderson. At the conclusion of the trial, the court gave the jury a conventional first degree murder instruction, a felony-murder instruction under § 559.010, V.A.M.S. (submitting whether the homicide occurred while defendant was participating in the commission of a robbery), and a conventional second degree murder instruction. The jury verdict acquitted defendant of murder in the first degree but convicted him of murder in the second degree. Defendant, on this appeal, does not seriously question that the evidence would have been sufficient to sustain a verdict of murder in the first degree under the felony-murder rule established by § 559.010. Defendant's companion was convicted of first degree murder under said rule and that conviction has been affirmed by this Court. State v. Beal, Mo., 470 S.W.2d 509. Defendant does contend, however, that there was no evidence to sustain a conviction of murder in the second degree, and that under the evidence the only possible verdicts were either guilty of murder in the first degree or not guilty. Consequently, says defendant, it was error to instruct the jury on murder in the second degree. At common law a person committing a homicide in the perpetration of a felony was guilty of murder.[1] Wharton on Homicide, 3rd Ed., p. 174. In Missouri, the legislature has provided that if a homicide occurs in connection with certain felonies enumerated in § 559.010, it is murder in the first degree, whether or not the death was intended. "The commission of, or the attempt to commit, the felony is the legal equivalent of premeditation, deliberation, and malice." State v. Hayes, Mo., 262 S.W. 1034, 1037. In State v. Robinett, Mo., 279 S.W. 696, 700, this Court, after recognizing the effect of the predecessor statute of § 559.010, went on to say: "* * * if the intention is to commit some felony other than one of those enumerated in that section, such homicide, although unintentional, is murder in the second degree under section 3231 * * ."[2] In State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420, 425, the Court, after reviewing and quoting the above language from the Robinett case, went on to say: "From the foregoing we see that the necessary elements of murder in the first or second degree are imported or transferred into the homicide case from the felony perpetrated only when those elements are not independently present in the record of the homicide. But if those elements are independently 271 present, then, when the other felony committed is other than arson, rape, robbery, burglary, or mayhem, the rule is as stated by this court in State v. Hayes, [Mo.,] 262 S.W. 1034, loc. cit. 1037: `But if the common purpose is to commit some felony other than one of those enumerated in section 3230 [section 3982, RSMo 1929 (Mo.St.Ann. § 3982)], the crime is murder in the first or second degree, depending upon circumstances attending the homicide.'" It thus is clear that Missouri recognizes the common law felony-murder rule under which a homicide committed in connection with a felony other than those enumerated in § 559.010 is murder in the second degree, absent other evidence from which the jury could find the elements necessary to a finding of murder in the first degree. As recognized in defendant's brief, the flight by defendant and Beal from the site of the robbery could constitute a continuation of the robbery and hence be a sufficient basis for sustaining a first degree felony-murder charge. See State v. Beal, supra. However, contrary to defendant's position, the acts of defendant and Beal in fleeing after the officer shouted to them to halt and after he fired his gun in an attempt to halt them also could sustain a charge of resisting lawful arrest, in violation of § 557.200, V.A.M.S. See State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016. Since resisting arrest is not one of the felonies specified in § 559.010, evidence thereof would have justified a submission of the case to the jury by an instruction on murder in the second degree based on a finding by the jury that the homicide occurred in connection with the offense of resisting arrest. Defendant argues that mere flight by the defendant did not amount to resistance to arrest since allegedly an arrest was never attempted. However, we reject that contention. The evidence was sufficient for the jury to find that the defendant was aware of the presence of the officer; that the officer, when 30 to 50 feet away, called to the men to halt; that they ran and got in the car and continued to flee; that the officer then shot at the car and knocked out the rear window; and that he followed the fleeing car at high speed in an attempt to catch and stop it. This was ample evidence to show that defendant joined Beal in the car Beal was using as a means of his own escape and did so in such circumstances as to have aided and abetted Beal's resistance to lawful arrest for the robbery, as well as his own arrest, and thereby became culpable as a principal for the homicide which resulted from Beal's operation of the automobile. The difficulty with the judgment and sentence in this case is that even though the evidence was sufficient to justify submitting the case to the jury under the common law felony-murder rule, as we have found, the State did not instruct the jury on the basis of that doctrine. Instead, insofar as the second degree murder charge was concerned, it instructed the jury solely on the basis of a conventional second degree murder instruction, which did not require the jury to find that the homicide was perpetrated in connection with the commission of the offense of resisting arrest. If the case was to be submitted to the jury on the basis of common law felony-murder, then a proper common law felony-murder instruction submitting murder in the second degree on that basis was a must. Such an instruction was not given and for that reason the conviction must be reversed and the case remanded for retrial. The State urges that defendant did not object to the instruction on the ground that it was not a proper submission under the common law felony-murder rule, and not having made such objection, it was waived. This position is untenable because the State did not purport to submit on that *272 theory. As a matter of fact, the common law felony-murder rule application was not even mentioned in this case until the divisional opinion herein was written. Under such circumstances, defendant cannot be faulted for having failed to object that the second degree murder instruction did not present a theory of guilt under the common law felony-murder rule when the State was not seeking to proceed on that basis. Reversed and remanded. All concur. NOTES [1] At common law there were no degrees of murder. [2] Section 3231, referred to above, is now § 559.020, V.A.M.S.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2857687/	CV1-518 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-518-CV ALICEAN R. KALTEYER AND CHARLES F. KALTEYER, APPELLANTS vs. DENNIS R. SNEED, M.D., APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. 485,536, HONORABLE JOSEPH HART, JUDGE PER CURIAM Alicean R. Kalteyer and Charles F. Kalteyer appeal from the summary judgment rendered against them in their medical malpractice action against Dr. Dennis R. Sneed. In four points of error, appellants contend that the trial court erred in: (1) ruling appellants' first amended motion for new trial to be untimely; (2) failing to consider appellants' second amended motion for new trial for guidance in determining whether to grant a new trial; (3) abusing its discretion by refusing to exercise that discretion; and (4) granting appellee's motion for summary judgment. We will overrule all points of error and affirm the judgment of the trial court. Background This malpractice action arose from Dr. Sneed's medical treatment of Alicean Kalteyer, specifically, her claim of injuries resulting from a corticosteroid injection and an X-ray given in April 1988. In June 1990, appellants filed suit. Appellants requested several postponements, to which appellee agreed before filing his motion for summary judgment on June 11, 1990, which was granted on August 5, 1991. On August 30, 1991, appellants filed a motion for new trial, arguing that they did not need expert testimony to defeat the motion for summary judgment. Subsequently, on October 8, 1991, appellants filed a motion for leave to file their first amended motion for new trial and presented an affidavit from a medical expert concerning appellee's standard of care in his treatment. On October 17, 1991, the trial court denied the motion for leave to file the first amended motion for new trial and denied the original motion for new trial. On October 18, 1991, appellants filed a motion for leave to file a second amended motion for new trial, which was denied October 21, 1991. Amended Motions for New Trial In point of error one, appellants contend that the trial court erred in overruling their first amended motion for new trial on the basis that it was not timely filed. Appellants argue that the various appellate court cases (1) applying Rule 329b(b) have ignored the phrase "without leave of court": One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment or other order complained of is signed. Tex. R. Civ. P. 329b(b). Appellants argue that to give meaning to all of the language in the rule, we must read the rule as implying that "with leave of court" a motion could be filed later than thirty days after the judgment is signed, or after a preceding motion has been overruled, otherwise there would be no need for the phrase "without leave." In other words, the effect of the cases is to leave 329b(b) reading the same way that it would if the phrase "without leave of court" were not in the rule at all. First, we note that the language "without leave of court" can be interpreted simply by giving it the meaning that, under the two circumstances listed, the filing of an amended motion is a matter of right that does not require the court's permission. See Huddleston v. Speegle, 557 S.W.2d 178, 182 (Tex. Civ. App.--Waco 1977, writ ref'd n.r.e.) (when the original motion for new trial was timely and not yet acted on, a timely amended motion for new trial was a matter of right and an abuse of discretion to refuse to file). Appellants rely on a case holding contrary to the previously cited decisions that an amended motion for new trial filed more than thirty days after the judgment is signed is a nullity. Homart Development Co. v. Blanton, 755 S.W.2d 158, 159-60 (Tex. App.--Houston [1st Dist.] 1988, orig. proceeding). In Homart, the trial court denied a motion for new trial. Within 30 days of that date, a "motion for rehearing," treated as an amended motion for new trial, was filed and granted. The argument was made that the amended motion for new trial, coming more than 30 days after the judgment's signing, was a nullity. The court held that 329b(b) did not cover the situation before it but covered only the situation in which a timely filed motion for new trial was pending and an attempt was made to file an amended motion later than 30 days after the signing of the judgment. Id. at 160. However, the situation in which the amended motion was filed within 30 days after a timely filed motion was overruled was covered by 329b(e) that gives the trial court plenary power for 30 days after overruling a motion for new trial. Id. Homart cites a civil procedure commentary on the effect of an attempt to file an amended motion for new trial later than 30 days after the signing of judgment, but within the time period of the trial court's plenary power: An original or amended motion filed more than 30 days after the judgment or order is signed is a nullity insofar as a subsequent appeal is concerned. An amended motion filed after the 30-day period but within the time during which the court has plenary power over its judgment depends for its effect upon the attitude of the court. Its filing does not operate to extend the court's jurisdiction over the judgment for any longer period than that given by a timely filed original or amended motion, that is, 30 days after the overruling of the timely motion. If the trial court ignores the tardy motion, it is ineffectual for any purpose. The court, however, may look to the motion for guidance in the exercise of its inherent power and acting before its plenary power has expired, may grant a new trial; but if the court denies a new trial, the belated motion is a nullity and supplies no basis for consideration upon appeal of grounds which were required to be set forth in a timely motion. Id. (citing 4 Roy W. McDonald, Texas Civil Practice in District and County Courts, § 18.06.02, at 287 (Frank W. Elliott ed., rev. ed. 1984)). First, we note another relevant section of McDonald that may help illuminate what he means in the above-cited section. "The time fixed for filing a motion for new trial restricts the rights of the parties to seek such relief but does not limit the inherent power of the court to act without a motion." McDonald supra, § 18.03 at 266 (emphasis added). The commentary in § 18.06 simply may be emphasizing that during the entire period of the court's plenary power, it can grant a new trial. Given the line of appellate cases holding that an amended motion for new trial filed later than 30 days after the signing of the judgment is untimely, given that a logical interpretation of Rule 329(b) exists that gives meaning to all of the language, and given that the authority on which appellants rely states that if a late motion is ignored, it is innefectual for any purpose, we do not think that the trial court abused its discretion in refusing to file the amended motions for new trial. We overrule point of error one. In point of error two, appellants contend that the trial court erred by not considering their second amended motion for new trial for guidance in determining whether they were entitled to a new trial. First, even the authority on which appellants rely says that if the court ignores the tardy motion, the motion is ineffectual for any purpose. Second, at the time of the filing of the second amended motion for new trial, whose contents were the same as the first amended motion for new trial, the court already had had a hearing, denied leave to file an amended motion for new trial, and overruled the original motion for new trial. For the reasons discussed above, the trial court properly denied both amended motions as untimely. We overrule point of error number two. In point of error three, appellants contend that the trial court abused its discretion in denying their amended motions for new trial as not timely filed. Appellants' argument is that the trial court abused its discretion by failing to exercise its discretion because the court determined it could not rule. The trial court did rule, however. It ruled that the motions were not timely filed. Inasmuch as we have held the motions not timely, we cannot say the trial court abused its discretion in denying them. We overrule point of error three. Motion for Summary Judgment In point of error four, appellants contend that the trial court erred in granting appellee's motion for summary judgment. We review a summary judgment according to the following principles: 1. The movant for summary judgment has the burden of showing that there is nogenuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-48 (Tex. 1985). The parties agree that under Texas law "a patient has no cause of action against his doctor for malpractice, either in diagnosis or treatment, unless he proves by a doctor of the same school of practice as the defendant that the diagnosis or treatment complained of was negligence and that it was a proximate cause of the patient's injuries." Williams v. Bennett, 610 S.W.2d 144, 146 (Tex. 1980); Bowles v. Bourdon, 219 S.W.2d 779, 782 (Tex. 1949). In general, a plaintiff must prove the elements of negligence and proximate cause by expert testimony. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965); Garza v. Levin, 769 S.W.2d 644, 646 (Tex. App.--Corpus Christi 1989, writ denied) (proximate cause is element in medical negligence that ordinarily must be proven by expert testimony; summary judgment for defendant doctor affirmed); Kemp v. Heffelman, 713 S.W.2d 751, 752 (Tex. App.--Houston [1st Dist.] 1986, no writ) (summary judgment for defendant doctor upheld based on his affidavit that he complied with applicable standard of care in spite of plaintiff's numerous lay complaints concerning doctor's care). Once the movant's proof negates an essential element of each of the non-movant's legal theories, the non-movant has the burden to raise a fact issue to defeat summary judgment. Tex. R. Civ. P. 166a(c). In his motion for summary judgment, appellee contended that his summary judgment evidence established that the treatment complained of did not breach the applicable standard of care and did not proximately cause any injury. His summary judgment evidence consisted of his affidavit and an affidavit from another doctor who had reviewed the relevant medical records. Because appellants provided no controverting expert testimony, appellee contended that the evidence established that there was no genuine issues of material fact with regard to one or more elements of appellants' cause of action. Appellants contended in their response to the motion, however, that they did not need to supply controverting expert testimony because the application of res ipsa loquitur to the medical records kept by appellee shows malpractice. Although the principle of res ipsa loquitur has been applied in Texas in medical malpractice cases only rarely, Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990), appellants argue that their case presents an appropriate application. When res ipsa loquitur has been applied, it has been in instances in which the nature of the alleged malpractice and injuries is plainly within common lay knowledge, such as operating on the wrong part of the body or leaving surgical instruments or sponges within the body. Compare Manax v. Ballew, 797 S.W.2d 71, 73 (Tex. App.--Waco 1991, writ denied)(operating on wrong part of patient's back to remove lump); with Irick v. Andrew, 545 S.W.2d 557, 559 (Tex. Civ. App.--Houston [14th Dist.] 1976) (use of X-ray apparatus not within common knowledge). Appellee contends that res ipsa loquitur has never been applied in this type of fact situation and that the use of the doctrine cannot be expanded to types of cases other than the ones to which it had been applied before the August 29, 1977, effective date of the Medical Liability and Insurance Improvement Act. (2) In this case, the medical records on which appellants rely show the patient's report of an adverse reaction to a steroid injection given by a previous doctor. The patient said that she received a shot, her hip went numb, she went to the hospital, and was examined by a neurologist. (The record does not include any hospital or doctor reports from that examination.) Appellee noted this history and made a note not to give Ms. Kalteyer another cortisone shot at the time of the initial consultation. According to the same records, the patient was very averse to any kind of injection or to remaining on a sustained course of medication, had had adverse gastrointestinal reactions to some previously prescribed medications, and was under treatment for other medical problems. In her affidavit attached to the response for summary judgment, Mrs. Kalteyer said that after receiving the shot on April 15, she again experienced numbness and difficulty walking. The affidavit also states that her eyes were improperly shielded from exposure during an X-ray taken April 29, causing numerous symptoms: dry and burning eyes; brown discoloration of her eyelids and at the site of the injection; hair loss; and a variety of vision problems. We will assume for the purposes of argument that appellants can show the existence of a fact issue on negligence based on applying res ipsa loquitur; that is, an adverse reaction to a shot of a substance to which the patient has previously adversely reacted is the type of result that does not occur in the absence of negligence. (3) We will also assume a fact issue exists with regard to negligence in performing the X-ray. Even so, appellee has established that there is no fact issue with regard to the element of proximate cause because appellants have not provided controverting expert testimony on this element. There must be a causal connection between the complained-of act and the complained-of injury. See Garza, 769 S.W.2d at 646. Application of res ipsa loquitur would allow an inference of negligence in the absence of expert testimony that the standard of care had been breached, but it does not eliminate the need for evidence of causation. See Jim M. Perdue, The Law of Texas Medical Malpractice, 22 Hous. L. Rev. 1, 231 (1985) ("Case law reveals that plaintiffs in a res ipsa case have the most trouble establishing the element of proximate causation."). In general, proximate cause must be shown by expert testimony. See Roark v. Allen, 633 S.W.2d 804, 811 (Tex. 1982) (evidence that child injured by forceps slipping during birth; no direct evidence that alleged improper handling of forceps caused them to slip; "area sufficiently complex that a layman cannot infer, from those facts alone, the cause of the forceps' slipping"); see generally Darrell L. Keith, Medical Expert Testimony in Texas Medical Malpractice Cases, 43 Baylor L. Rev. 1, 83-96 (1991). We do not think the general experience of laypersons adequate to evaluate the medical evidence without expert testimony. A lay evaluation of this body of medical records might establish, in lay opinion, a question whether the reported symptoms were caused by the treatment or simply another symptom of an underlying disorder; i.e., conflicting inferences raising a fact issue. However, an expert evaluating the same records might know that the treatment administered could not have caused the symptoms reported. We do not have the necessary expert testimony to show a causal link between the treatments and the symptoms. Because appellee has demonstrated that no material fact issue exists on an element of appellants' cause of action, he was entitled to summary judgment. We overrule point of error four and affirm the trial court's judgment. [Before Chief Justice Carroll, Justices Jones and Kidd] Affirmed Filed: September 23, 1992 [Publish] 1. 1 Reviea v. Marine Drilling Co., 800 S.W.2d 252, 258 (Tex. App.--Corpus Christi 1990, writ denied); Voth v. Felderhoff, 768 S.W.2d 403, 412 (Tex. App.--Fort Worth 1989, writ denied); Willacy County v. South Padre Land Co., 767 S.W.2d 201, 202 (Tex. App.--Corpus Christi 1989, no writ); Equinox Enter., Inc. v. Associated Media, Inc., 730 S.W.2d 872, 874 (Tex. App.--Dallas 1987, no writ); Baker v. Wal-Mart Stores, Inc., 727 S.W.2d 53, 55 (Tex. App.--Beaumont 1987, no writ); L.B. Foster Co. v. Glacier Energy, Inc., 714 S.W.2d 48, 49 (Tex. App.--San Antonio 1986, writ ref'd n.r.e.); Lynd v. Wesley, 705 S.W.2d 759, 762 (Tex. App.--Houston [14th Dist.] 1986, no writ); Lind v. Gresham, 672 S.W.2d 20, 22 (Tex. App.--Houston [14th Dist.] 1984, no writ). 2. 2 Tex. Rev. Civ. Stat. Ann. art. 4590i, § 7.01 (West Supp. 1992); Haddock, 793 S.W.2d at 949-956 (discussion of res ipsa loquitur and effect of the act). 3. 3 Such an assumption appears contrary to existing law. See Menefee v. Guehring, 665 S.W.2d 811, 818 (Tex. App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.) (verdict for defendant physician proper when no expert testimony that he should have stopped drug therapy sooner after allergic reaction or that continuance was contrary to established medical standards); see generally Annotation, Malpractice: Physician's Liability for Injury or Death Resulting from Side Effects of Drugs Intentionally Administered to or Prescribed for Patient, 45 A.L.R. 3d 928-947 (1972). The fact of a bad result or complication is not enough in and of itself to allow an inference of negligence. See Haddock, 793 S.W.2d at 953. We note that Mrs. Kalteyer was injected in her left hip on March 31, 1988, with no complications reported or noted. The injection in her right hip, given April 15, 1988, is the one complained of. These circumstances illustrate the hazard of trying to make a lay evaluation of medical records rather than having expert testimony. It may be that temporary numbness is considered an acceptable reaction, when compared to the possibility of long-term relief from the shot, such that it does not rule out ever administering further injections, especially if the patient may have adverse reactions to other possible remedies as well. Evaluating whether appellee's risk-benefit analysis fell below an acceptable standard of care is properly the function of expert testimony.	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/2759094/	Fourth Court of Appeals San Antonio, Texas December 9, 2014 No. 04-14-00850-CV IN RE Dr. Nancy T. POBLENZ Original Mandamus Proceeding 1 ORDER Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice On December 8, 2014, relator filed a petition for writ of mandamus and emergency motion for temporary relief pending a ruling on the mandamus petition. The court has considered the petition for writ of mandamus and is of the opinion that relator is not entitled to the relief sought. Accordingly, the petition for writ of mandamus and emergency motion for temporary relief are DENIED. See TEX. R. APP. P. 52.8(a). The court’s opinion will issue at a later date. It is so ORDERED on December 9th, 2014. _____________________________ Rebeca C. Martinez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 9th day of December, 2014. _____________________________ Keith E. Hottle Clerk of Court 1 This proceeding arises out of Cause No. 2013-CI-20890, styled Daniel Coindreau, Individually and Andrea Fernandez, Individually and as Next Friend of C. C., A Minor v. CHRISTUS Santa Rosa Health Care Corporation d/b/a CHRISTUS Santa Rosa Hospital, pending in the 285th Judicial District Court, Bexar County, Texas, the Honorable Karen H. Pozza presiding.	01-03-2023	12-10-2014
https://www.courtlistener.com/api/rest/v3/opinions/1520298/	486 S.W.2d 859 (1972) Jonisue Cogdell Bowden STIFF et al., Appellants, v. The FORT WORTH NATIONAL BANK, Trustee, et al., Appellees. No. 4546. Court of Civil Appeals of Texas, Eastland. October 27, 1972. Rehearing Denied November 24, 1972. 860 Pope, Hardwicke, Hobbs, Christie & Montgomery, George F. Christie, Ft. Worth, Gibson, Ochsner, Adkins, Harlan & Hankins, S. Tom Morris, Amarillo, Gene L. Dulaney, Snyder, Stone, Tilley, Parker, Snakard, Law & Brown, Robert M. Randolph, Ft. Worth, Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Midland, for appellants. Rosser & Carroll, Joe R. Carroll, Snyder, Shafer, Gilliland, Davis, Bunton & McCollum, W. O. Shafer, Odessa, Jones & Stiff, Lawson K. Stiff, Albuquerque, N. M., Newton J. Steele, Midland, for appellees. COLLINGS, Justice. The plaintiff, The Fort Worth National Bank, Trustee, filed its original petition in this cause naming as defendants Jonisue Cogdell Stiff, William Munsey Cogdell and David Martin Cogdell, Jr., Independent Executors of the estate of D. M. Cogdell, and Marion P. Cogdell and Charlotte Cogdell Etgen the primary beneficiaries of the trust, seeking an accounting and a construction of the will of D. M. Cogdell, deceased. The issues involving will construction were severed. Motions for summary judgment on the issues of will construction were filed by plaintiffs and defendants, and the court entered its order for summary judgment construing the will. The court found and the parties agree that the will is clear and unambiguous. In substance, the only issue before this court is whether appellants are correct in 861 their contention that all of the residuary bequests and devises should bear proportionately the debts, taxes and expenses of administration of the D. M. Cogdell Estate, and that this burden should not fall solely upon some of the residuary bequests and devises. The Fort Worth National Bank, Trustee, Marion P. (Bill) Cogdell and Charlotte Etgen filed motions requesting judgment that the trustee recover, as a matter of law, on behalf of each trust under the will of D. M. Cogdell, deceased, a one-tenth (1/10) of the residuary estate of D. M. Cogdell, one-tenth (1/10) of the income of the residuary estate of D. M. Cogdell free and clear of all debts, taxes and administrative expenses, interest at the rate of 10% per annum from the date the trust should have received the royalties and mineral interest as alleged in the bank's third amended original petition, and as principal, one-tenth (1/10) of the income attributable to that portion of the residuary estate awarded to Jonisue Cogdell Stiff, William Munsey Cogdell and David Martin Cogdell, Jr., other than that portion of the income used to pay debts, taxes and expenses properly chargeable as such. William Munsey Cogdell and David Martin Cogdell, Jr., filed a motion requesting summary judgment that the one-tenth (1/10) of the residuary estate of D. M. Cogdell, and the income therefrom, bequeathed to each trust, bear its proportionate part of the debts, taxes and expenses of administration of the estate of D. M. Cogdell; that the four-fifths (4/5) of the residuary estate of D. M. Cogdell, and the income therefrom bequeathed to David Martin Cogdell, Jr., William Munsey Cogdell and Jonisue Cogdell Stiff, bear its proportionate part of the debts, taxes and expenses of administration of such estate, and that the property specifically devised in paragraph 3 of the will, together with the income therefrom, not be charged with debts, taxes and expenses of administration, save and except state inheritance taxes properly chargeable thereto, ad valorem taxes, ordinary repairs and other expenses connected with the management and operation of said properties during administration. Appellant, Jonisue Cogdell Stiff, filed a reply to the motions for summary judgment filed by The Fort Worth National Bank, Trustee, Bill P. Cogdell and Charlotte Cogdell Etgen, requesting that such motions for summary judgment be denied. Hearing was had on all of such motions and replies. Pursuant to which hearing the court rendered its summary judgment order. We have examined the judgment and find the appellants' summary of the judgment to be correct: (1) Under the will of D. M. Cogdell, the Marion P. Cogdell Trust and Charlotte Cogdell Etgen Trust each was devised and bequeated a 1/10 interest in the residuary estate of D. M. Cogdell, deceased; (2) Under the will of D. M. Cogdell, David Martin Cogdell, Jr., William Munsey Cogdell and Jonisue Cogdell Stiff were each devised and bequeathed 1/3 of 8/10 of the residuary estate of D. M. Cogdell, deceased; (3) Under the will of D. M. Cogdell, all of the corpus of the estate is subject to proportionate payment of debts, estate and inheritance taxes, and expenses of administration; (4) In addition to their rights in the residuary estate, each trust was bequeathed the right to receive from the date of the death of D. M. Cogdell 1/10 of the income from all royalty and mineral interests owned by D. M. Cogdell, free and clear of all debts, estate and inheritance taxes, and expenses of administration; (5) All debts, estate and inheritance taxes and expenses of administration of the Estate of D. M. Cogdell, deceased, are to be paid by: a. The remaining of 8/10 of the income received from the date of D. M. Cogdell's death from all royalty and mineral interests, to the extent such income 862 has been actually applied by the Executors toward same; b. All income from all properties not specifically devised, other than royalty and mineral interests, to the extent such income has been actually applied by the Executors toward same; c. All property owned by D. M. Cogdell at his death not subject to a specific devise or bequest. (6) The trusts are not entitled to receive interest for the period during which their enjoyment of the income payable to them was postponed; (7) The Executors may deduct from the royalty and mineral income due each trust an amount equal to 1/10 of the United States income taxes paid by the Executors on income received by the estate since the date of death; (8) The accounting of the majority Executors is to be restated to allocate to each trust 1/10 of all royalty and mineral income received from the date of D. M. Cogdell's death, free and clear of debts, estate and inheritance taxes and expenses of administration, charging each trust with 1/10 of the United States income taxes paid by the Executors on the estate income received during administration; (9) William Munsey Cogdell, David Martin Cogdell, Jr., and Jonisue Cogdell Stiff are respectively entitled to receive income from the date of D. M. Cogdell's death attributable to the properties specifically devised or bequeathed to them in paragraph 3 of his will, free and clear of all debts, estate and inheritance taxes and expenses of administration (except for those expenses incurred in maintenance and operation of the specifically devised properties); and (10) The accounting of the majority Executors is to be restated to allocate to each such specific devisee under paragraph 3 the income received attributable to properties specifically devised or bequeathed to each of them respectively. The only evidence before the trial court and before this Court is the will of D. M. Cogdell, deceased. The order from which appeal is taken states that the court finds the will to be clear and unambiguous as construed from its four corners. No affidavits, depositions or other evidence was offered at the summary judgment hearing (other than the affidavit of Bruce Petty, which simply stated the fact of the death of D. M. Cogdell, that his will was admitted to probate and that a true and correct copy is attached as an exhibit to the motion for partial summary judgment of The Fort Worth National Bank, Trustee). Two propositions appear to be clear concerning interpretation of wills in this respect. First, unless the will directs otherwise, debts, taxes and expenses of administration are to be paid out of the corpus of the residue, with all residuary devises and bequests to bear their proportionate part. Second, unless the will directs otherwise, income received during administration from the residuary estate goes to the residuary devisees and legatees proportionately, and debts, taxes and expenses of administration are not charged against such income. Thus in the absence of a contrary provision in the will, residuary income received during administration would not be charged with debts, taxes and expenses of administration. 70 ALR, pg. 637; Held v. Keller, 135 Minn. 192, 160 N.W. 487 (1916); Folsom v. Strain, 138 Neb. 497, 293 N.W. 357 (1940). However, there is a contrary provision in D. M. Cogdell's will. Paragraph V of the will is entitled "Appointment of Executors". It first appoints David Martin Cogdell, Jr., William Munsey Cogdell and Jonisue Cogdell Bowden Stiff as co-independent executors without bond and then provides in part as follows: "... I give and grant unto my executors all of the powers with respect to 863 the management of my estate as are conferred on the trustees under the terms of the trusts established herein. . . . . . . My executors are hereby given all the powers to deal with the property included in my estate as are given to the trustee herein. In addition, I authorize my executors to use income from my estate during the period of administration to pay debts, taxes, and administration costs if in the sole discretion of the executors such use of income is desirable for the best interests of the estate. All decisions of my executors shall be final and binding upon anyone who has or may have an interest in my estate." The primary question presented by appellants is whether the income from the trusts' share of the residuary estate received by the executors during administration should be charged with proportionate payment of debts, taxes and administration expenses. The cardinal rule of will construction is to determine the intention of the testator and for that purpose the language of the entire will must be looked to and not merely to isolated or particular provisions thereof. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955); Haile v. Holtzclaw, 414 S.W.2d 916 (Sup. Ct.1967). We think that D. M. Cogdell gave his executors the power and authority in their sole discretion to use income from the residuary estate to pay debts, taxes and expenses of administration, and that he made no distinction between the trusts' share of such residuary income and the share of the other residuary devisees. Neither did he make any distinction between oil and gas income and other income. Appellees contend that the trusts' share of oil and gas income received by the executors during the administration could not be used by the executors within their discretion to pay debts, taxes and expenses of administration, but must go to the trusts free and clear. Appellees' argument in support of this contention is that the two trusts are short-term trusts lasting only ten years if the primary beneficiaries survive and that during the ten-year period the primary beneficiaries are entitled only to income. In paragraph IV of the will the trust provides: "The Trustee is hereby directed to assign in the proportions set out above (that is, 1/10 to the Marion P. Cogdell Trust and 1/10 to Charlotte Cogdell Etgen Trust) undivided interests in any royalty and mineral interests owned by me at my death. The Trustee is hereby empowered to exercise its own discretion with reference to the partition and division of any other properties received at the inception of the trust, between the two trusts, including the right and power to assign undivided interests in the same property between the two trusts, and the decision of the Trustees as to the values of any property so partitioned shall be binding and conclusive on both trusts and all persons interested therein." Appellees say that it is evident that D. M. Cogdell intended that 1/10 of his royalty and mineral interest be assigned immediately upon his death to each trust to provide immediate income to each primary beneficiary, and in order to carry out that purpose, it necessarily follows that it was his intention that such oil and gas income not be charged with proportionate debts, taxes and expenses of administration. Appellees argue that otherwise D. M. Cogdell's intention to provide immediate income for the primary beneficiaries would be frustrated and that portion of the will could not be given effect. We cannot agree with the appellees' contention. We think the meaning and purpose of the above provision is to make certain that each trust receives equal interests in the royalty and mineral properties included in the estate. *864 The provisions of the will are contrary to and entirely inconsistent with any general rule of construction that income goes directly to the trusts from date of death, free of debts. None of the cases cited by appellees which state the general principles of trust law that the income of the trust is not subject to debts, taxes and expenses and is payable from the date of death, involve a will with a provision allowing the executors to use any income produced during administration to pay debts, taxes and expenses. All of the appellees' cases state that the general principles of trust law apply only if there is no provision in the will reflecting a contrary contention. In the instant case there was a stated contrary intention. The will of D. M. Cogdell, deceased, is clear and unambiguous, and as a matter of law, subjects the entire residuary estate, proportionately, whether principal or income, to payment of debts, taxes and expenses of administration. Under the express terms of the will, the executors in their sole discretion may use either the principal or income of the residuary estate to pay debts. That provision of the will is binding on the parties to this suit. We hold that two-tenths (2/10) of the residuary estate of D. M. Cogdell is devised and bequeathed to The Fort Worth National Bank as trustee for the Marion P. Cogdell Trust and the Charlotte Cogdell Etgen Trust, and that such share of the residuary estate and the income therefrom, whether from royalty and mineral interests or otherwise, shall bear its proportionate part of the debts, taxes and expenses of administration of the estate of D. M. Cogdell, and that four-fifths (4/5) of the residuary estate of D. M. Cogdell is devised and bequeathed to David Martin Cogdell, Jr., William Munsey Cogdell and Jonisue Cogdell Stiff, share and share alike, and that such share of the residuary estate and the income therefrom shall bear its proportionate part of the debts, taxes and expenses of administration of the estate of D. M. Cogdell. To the extent that the trial court's order provides otherwise, it is modified and reformed and as reformed is affirmed. WALTER, Justice (dissenting). I cannot agree with my brethren on their disposition on this case. They say: "Second, unless the will directs otherwise, income received during administration from the residuary estate goes to the residuary devisees and legatees proportionately, and debts, taxes and expenses of administration are not charged against such income." They have set forth the correct rule that unless there is a provision to the contrary in Mr. Cogdell's will, the Marion P. Cogdell Trust and the Charlotte Cogdell Etgen Trust are entitled to income from the date of his death. They have, in effect, rewritten his will and added a provision charging the income from the trusts with the debts, taxes and expenses of administration. In my opinion no such provision is contained in the will. The majority opinion imputes to the testator an intention to so charge the trusts from two provisions which they have quoted from paragraph five of the will. However, in paragraph four, quoted in the original opinion, he first directs that the trustee assign to each trust an undivided 1/10 interest in royalty or mineral interest owned by him AT HIS DEATH. The testator is presumed to have known the law that income received during administration by such trusts would not be burdened with the debts, taxes and expenses of administration. It is clear that he did not intend for the trusts to be so burdened or he would have expressly placed such a provision in his carefully drawn will. I would modify and reform the judgment by providing that the two trusts are entitled to interest at the legal rate from the date they should have received such income and as modified and reformed, I would affirm the judgment of the trial court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520304/	464 F.Supp. 876 (1979) Roger ROBERTSEN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Civ. A. No. 78-233. United States District Court, D. South Carolina, Charleston Division. February 12, 1979. 877 878 Andrew K. Epting, Jr., Charleston, S. C., for plaintiff Roger Robertsen. Joseph W. Cabaniss, Charleston, S. C., for defendant State Farm Mut. Auto. Ins. Co. ORDER BLATT, District Judge. Plaintiff instituted this action seeking actual and punitive damages from his own insurer for an alleged bad faith refusal of the insurer to pay first party personal injury protection benefits provided in the contract of insurance. Defendant has filed a motion to dismiss on the ground that the required jurisdictional amount is not present in this case, a motion that, apparently simple on its face, casts this court into a difficult jurisdictional and jurisprudential inquiry. BACKGROUND Plaintiff's son was injured while riding his bicycle and, as a result of such injuries, he received medical care, admittedly valued at $2,165.05, from the United States Navy. Pennsylvania National Insurance Company, the insurance carrier for the motorist inflicting the injury, paid its full $1,000.00 personal injury protection (PIP), and plaintiff alleges that the balance of the medical expenses owed the Navy($1,165.05)is due under defendant's policy which provides for $1,000.00 basic personal injury protection as well as $1,000.00 supplemental injury protection. The defendant insurer refused to make such payment and the instant litigation has resulted. THE MOTION The defendant has moved to dismiss the instant action for failure to meet the jurisdictional amount. Taking the allegations of the complaint as true, it is clear that the maximum possible actual medical damages are $1,165.05; thus, unless there are other compensable elements of actual damages, or unless punitive damages are allowable in this type of action, the jurisdictional prerequisite is lacking. ISSUES The seemingly simple facts set out above give rise to the following issues: 1. Would South Carolina recognize a cause of action for bad faith, wrongful refusal to settle a first party insurance claim and allow actual damages based on elements other than the amount claimed under the policy plus substantial punitive damages in such an action? 2. Should this court abstain from deciding the issue raised above pending an authoritative statement on this question from the South Carolina Supreme Court? The court, to develop the issues logically, will answer the second question first. TO ABSTAIN OR NOT TO ABSTAIN Federal courts have long followed the principle that abstention is appropriate under certain circumstances to accommodate delicate considerations of federal-state comity. To that end, federal courts have abstained when a decision by a state court on an unsettled question of state law might avoid a difficult constitutional issue, Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); or when a decision by a federal court would disrupt orderly state administrative procedures, interfere with essential state functions, or create needless friction with important state policies, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). See generally, County of 879 Allegheny v. Frank Mashuda Company, 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). Both of these situations involve constitutional or statutory issues of a public as opposed to a private nature.[1] In cases involving private litigants raising important unsettled questions of state law which involve(apart from normal precedential effect)only the rights of these private parties, abstention is deemed to be inappropriate, even if it is felt that the federal decision may conflict with later state decisions on the same issue. See, Wohl v. Keene, 476 F.2d 171, 174 (4th Cir. 1973). The instant case clearly involves the final category of litigation, for while the issues involved are "groundbreaking" and difficult, they are not the type categorized as "policy problems of substantial public import whose importance transcends the result in the case then at bar." Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). Even though the public will have an interest in the creation of a new cause of action against first party insurers, this is not, in this court's opinion, the type of "public interest" represented by state policies, procedures, or adjudications at which Burford, supra, abstention is aimed; therefore, the court has determined that abstention, as urged by the defendant, is inappropriate. THE FACTOR OF EIGHT Federal courts do not sit to issue advisory opinions or engage in fascinating conjecture as law review writers are wont to do; they sit to decide actual cases and controversies. In the present situation, if this court can say with legal certainty that it would refuse an award of extra-contractual damages of $9,000.00(approximately eight times the possible medical damage award of $1,165.05)it should not decide the issue of whether a cause of action for wrongful failure to settle may exist, because, in any event, the plaintiff would be unable to meet the jurisdictional amount necessary to proceed in this court. In assessing the propriety of a possible punitive[2] damage award eight times that of the actual damages, the court has reviewed the factors that the South Carolina Supreme Court has considered in determining an appropriate amount in a particular case; among these factors are "the character of the tort committed, the punishment which should be meted out therefor, and the ability of the wrongdoer to pay." Hicks v. Herring, 246 S.C. 429, 144 S.E.2d 151, 155 (1965). The South Carolina Supreme Court has repeatedly shown no great discomfort with punitive damage awards in the range of three to ten times the actual damage award and has, on occasion, approved awards much higher. For instance, in one of the earlier cases found considering the issue, the court approved $1,014.00 punitive damages in a trespass case where the actual damage award was only $2.50. Beaudrot v. Southern Railway Co., 69 S.C. 160, 48 S.E. 106 (1904). Other representative cases allowing a wide range of punitive damage awards both in amount as well as in percentage are: Bradley v. Metropolitan Life Insurance Co., 162 S.C. 303, 160 S.E. 721 (1931) [$180.00 actual, $2,000.00 punitive breach of contract accompanied by fraudulent act]; Eaddy v. Greensboro-Fayetteville Bus Lines, 191 S.C. 538, 5 S.E.2d 281 (1939) [$100.00 actual, $400.00 punitivebreach of duty by common carrier]; Morrow v. Evans, 223 S.C. 288, 75 S.E.2d 598 (1953) [$5,000.00 actual, $15,000.00 punitiveauto collision]; Weatherford v. Home Finance 880 Co., 225 S.C. 313, 82 S.E.2d 196 (1954) [$15.00 actual, $2,000.00 punitivefraud]; Hall v. Walters, 226 S.C. 430, 85 S.E.2d 729 (1955) [$1,000.00 actual, $25,000.00 punitive assault]; Norton v. Ewaskio, 241 S.C. 557, 129 S.E.2d 517 (1963) [$310.00 actual, $3,440.00 punitivetraffic accident with Catholic monk as defendant]; Hicks v. Herring, 246 S.C. 429, 144 S.E.2d 151 (1965) [$2,000.00 actual, $7,500.00 punitiveauto collision]; Thompson v. Home Security Life Insurance, S.C., 244 S.E.2d 533 (1978) [$433.00 actual, $12,500.00 punitivebreach of insurance contract accompanied by fraudulent act]. As indicated by the wide range of dollar and percentage variance between the aforementioned actual and punitive damage awards allowed to stand, the South Carolina Supreme Court does not adhere to any per se rule on such matters. As stated by that court: "The appellant attempts to place a definite mathematical rule upon the assessment of punitive damages as to the proportion which the same should bear to actual damages. There is no reason for such rule and the same does not exist in South Carolina." Eaddy, supra, (5 S.E.2d at 283). Based on both ancient and recent precedent in South Carolina, this court cannot say to a legal certainty that, after hearing the facts of this case(if this court should permit the cause of action plaintiff proposes)it would strike a $9,000.00 punitive damage award should such facts indicate an unusually wrongful situation. ALLOWANCE OF THE CAUSE OF ACTION Having concluded the preliminary "sparring" hereinabove stated, the court now reaches the "main event"the question of whether this court, under Erie,[3] applying South Carolina law, will predict that the South Carolina Supreme Court, if faced with the identical question, would allow a cause of action against a first party insurer for wrongful failure to pay first party benefits. Such a decision requires considerable immersion into the "Tyger River"[4] doctrine to analyze its jurisprudential underpinnings; additionally, recent cases from other jurisdictions may provide guidance as to the trend of law in this area, but, in the final analysis, true to Erie, the court must prognosticate what the South Carolina Supreme Court would do. Brendle v. General Tire & Rubber Co., 505 F.2d 243 (4th Cir. 1974); Doyle v. United States, 441 F.Supp. 701, 713 (D.S.C.1977). Although apparently unrecognized by some judges, who otherwise possess excellent jurisprudential reputations, the South Carolina Supreme Court is, in this court's opinion, in the vanguard of the law when consumer protection or redress of personal rights is involved. In a recent case removing barriers to suits against charitable hospitals, Brown v. Anderson County Hospital, 268 S.C. 479, 234 S.E.2d 873 (1977), that court provided a timely reiteration of its philosophy: "The defendant argues that no change in the law of charitable immunity should be made by this Court by reason of stare decisis. We reject this argument. This doctrine is not intended `to effect a "petrifying rigidity", but to assure the justice that flows from certainty and stability'. [citation omitted]. Fundamentally, stare decisis is not a rule of law; it is a matter of judicial policy. . . . It does not render immutable judicial formulations of common law rules." 234 S.E.2d at 876. The Court of Appeals for the Fourth Circuit in Smith v. Regina Mfg. Corp., 396 F.2d 826, 828 (4th Cir. 1968), expressly recognized the progressive stance that the Supreme Court of South Carolina assumes on matters affecting personal rights. With all relevant authorities in accord as to the innovative character of the South Carolina Court, this court, in this diversity action, will, as recently put by its experienced and 881 distinguished colleague, "adopt the state's decision-making processes." Gattis v. Chavez, 413 F.Supp. 33, 37 (D.S.C.1976) (Hemphill, J.). Plaintiff seeks to extrude his novel cause of action from the policy underlying Tyger River Pine Co. v. Maryland Casualty Co., 170 S.C. 286, 170 S.E. 346 (S.C.1933), and its progeny. That policy is often expressed in this state as a requirement that an insurer, when faced with a choice which will affect its insured adversely, must place its client's interests before its own if to do otherwise would constitute negligence and/or bad faith. In particular, the South Carolina Supreme Court has said: "Unreasonable refusal on [the company's] part to accept an offer of compromise settlement has been held to render it liable in tort to the insured for the amount of the judgment against [the insured] in excess of the policy limit." Miles v. State Farm Mutual Automobile Insurance Co., 238 S.C. 374, 120 S.E.2d 217, 220 (1961). The South Carolina Supreme Court, like courts of many other states, has found that a liability insurer owes its insured a duty to defend and settle suits brought against its insured in good faith and with reasonable care. Miles, supra. The question facing this court is whether the South Carolina Supreme Court would place a similar duty on an insurer to settle its insured's first party claims arising under an auto liability policy containing first party personal injury protection benefits.[5] The South Carolina Supreme Court and its Legislature have not been completely silent in this area. In the famous case of Welborn v. Dixon, 70 S.C. 108, 49 S.E. 232 (1904), the South Carolina Supreme Court developed the doctrine that a breach of contract (usually an insurance contract) accompanied by a fraudulent act can give rise to punitive damages. Most recently that doctrine was applied in Thompson v. Home Security Life Insurance, S.C., 244 S.E.2d 533 (S.C.1978), when the defendant insurance company, upon learning of plaintiff's diabetic condition, substituted policies under the guise of increasing coverage, whereas its true plan was to prevent plaintiff's insurance recovery for his diabetic hospitalization. Plaintiff recovered punitive damages thirty times actual damages. One may speculate as to the result had the insurer denied coverage solely on the basis of nonpayment of premiums (which was its alternate spurious defense) without the issuance of a bogus replacement policy. Such a situation is analagous to that allegedly presented here refusal to pay benefits on the basis of a groundless, bad faith defense. The Legislature has nearest approached the exact question presented here in South Carolina Code § 38-9-320 (1976), which section provides: "Liability for attorneys' fees where insurer has refused to pay claim. (1) In the event of a claim, loss or damage which is covered by a policy of insurance or a contract of a nonprofit hospital service plan or a medical service corporation and the refusal of the insurer, plan or corporation to pay such claim within ninety days after a demand has been made by the holder of the policy or contract and a finding on suit of such contract made by the trial judge of a county court or court of common pleas that such refusal was without reasonable cause or in bad faith, the insurer, plan or corporation shall be liable to pay such holder, in addition to any sum or any amount otherwise recoverable, all reasonable attorneys' fees for the prosecution of the case against the insurer, plan or corporation. The amount of such reasonable attorneys' fees shall be determined by the trial judge and the amount added to the judgment. In no event shall the amount of the attorneys' fees exceed one third of 882 the amount of the judgment or the sum of twenty-five hundred dollars, whichever is less. (2) If attorneys' fees are allowed as herein provided and, on appeal to the Supreme Court by the defendant, the judgment is affirmed, the Supreme Court shall allow to the respondent such additional sum as the court shall adjudge reasonable as attorneys' fees of the respondent on such appeal. (3) Nothing in this section shall be construed to alter or affect the Tyger River Pine Co. v. Maryland Casualty Co., 161 S.E. 391, 163 S.C. 229, doctrine." [emphasis added] This law allows recovery for bad faith-unreasonable (negligent) refusal to pay benefits, but speaks clearly only as to attorney's fees. Subsection (3) which refers to the Tyger River doctrine obliquely is, in this court's opinion, "a mystery wrapped in a puzzle inside an enigma." What did the Legislature mean by the statement that the section was not to alter or affect the Tyger River doctrine? Did it intend to limit recovery to attorney's fees in cases not traditionally governed by Tyger River;[6] or did it intend to express a "hands-off" approach as to the future development of the Tyger River doctrine? Unfortunately, legislative history does not exist for South Carolina statutes and, therefore, this court is left to ponder the full meaning of subsection (3). Based on the judicially recognized progressive stature of the South Carolina Legislature,[7] this court is convinced that it did not intend to reduce the Tyger River doctrine, or its emanations, in any respect, but rather that it intended that court interpretations of Tyger River should continue without interference from the Legislature. The Legislature has also indicated its awareness of the problem of bad faith dealings by insurers in South Carolina Code § 38-37-1110(3), which provides that an insurer who fails "to adopt and implement reasonable standards for the prompt investigation and settlement of claims, including third party claims, arising under its policies" is liable for a $10,000.00 fine, or suspension of its license, said penalty to be imposed by the South Carolina Insurance Commissioner (§ 38-37-1120). Significantly, this court notes that the South Carolina Supreme Court in G-H Insurance Agency v. Travelers Insurance Companies, 270 S.C. 147, 241 S.E.2d 534 (S.C.1978), held that the fact that the Insurance Commissioner could impose a penalty for violation of another section of the Act (§ 38-37-940(1)) (termination of an agent) did not preclude the court from determining that the termination was "wrongful", allowing the agent himself to sue in a private cause of action for wrongful breach of contract. (241 S.E.2d at 536). In addition to the statutes discussed above, South Carolina Code § 38-55-70 provides: "No person shall, in connection with adjusting any claim, loss, or damage under a contract or policy of insurance, misrepresent to an insured, or any other person having an interest in the proceeds payable under such contract or policy, the terms, coverage or effect of such contract or policy, for the purpose and with the intent of effecting settlement of such claim, loss or damage under such contract or policy on less favorable terms than those provided in and contemplated by such contract or policy." 883 A violation of this section is deemed to be an "unfair trade practice," subjecting the violator to a possible fine or suspension of license (§ 38-55-240). It is interesting to note that the South Carolina Supreme Court in Brown v. All American Life and Casualty Company, S.C., 247 S.E.2d 812 (1978) cited this section as relevant to the existence of an insurer's duty "to speak the truth as to the terms and coverage of the policy" in a private action for fraudulent procurement of a release. The South Carolina Supreme Court has recently re-emphasized its own liberal view in the insurance field by holding that the South Carolina Automobile Reparation Reform Act of 1974 makes it "wrongful" for an insurer to terminate a contract of an insurance agency for insuring an excessive number of "bad risks"; thus such agency may bring suit at common law in a private cause of action, G-H Insurance Agency v. Travelers Insurance Companies, 270 S.C. 147, 241 S.E.2d 534 (S.C.1978). In a later opinion, the court held that such a cause of action may be retroactively applied to attack terminations based on contracts entered into prior to the effective date of the statute. Rowell v. Harleysville Mutual Insurance Company, S.C., 250 S.E.2d 111 (1978).[8] A more directly relevant example of the South Carolina Supreme Court's liberal attitude in insurance benefit cases is Moultrie v. North River Insurance Co., S.C., 249 S.E.2d 158 (1978), where the court held that an insured who recovers from a tortfeasor for his injuries and medical expenses may still claim full Personal Injury Protection (PIP) benefits from his own insurer without granting his insurer a setoff; the court rejected the "double recovery" argument of the insurance company in reaching its decision. In South Carolina today, as viewed by this court, an insured may recover punitive damages from his insurer for fraudulent breach of an insurance contract accompanied by a fraudulent act (Welborn v. Dixon, supra); he may recover attorney's fees from his insurer for bad faith-unreasonable refusal to pay benefits (South Carolina Code § 38-9-320 (1976)); he may recover an excess judgment rendered against him based upon his insurer's bad faith-negligent refusal to settle or defend (Tyger River, supra); and he may complain to the Insurance Commissioner and have his insurer's license revoked, or a fine imposed, for such insurer's unreasonable failure to pay benefits (South Carolina Code § 38-37-1110(2)), or for its misrepresentation concerning an insurance policy during settlement negotiations (§ 38-55-70). In addition, both the South Carolina Supreme Court and the South Carolina Legislature have repeatedly evinced a liberal attitude in the protection and promotion of the rights of individuals against insurance companies. Based on these factors, and after full consideration of the precedent, attitude, and laws of this state, this court has concluded that the South Carolina Supreme Court would recognize a cause of action for bad faith-unreasonable refusal to pay first party insurance benefits; such an action would partake of a hybrid character similar to that described in Tyger River, supra. Specifically, the insured would be able to waive the contract and sue in common law tort for the intentional, reckless or unreasonable refusal of the insurance company to pay benefits which are clearly due under the policy. See, Jolly v. General Accident Group, 382 F.Supp. 265, 266 (D.S.C.1974) [Tyger River conduct gives rise to suit in either tort or contract]. Thus, it appears that if the insured can demonstrate bad faith-unreasonable action on the part of his insurer, he can recover compensatory damages[9] not limited to the face amount of the policy. In addition, 884 if he can demonstrate that the insurer's failure to pay benefits was willful, or in reckless disregard of his rights, he can recover punitive damages. This conclusion finds support in recent case law from other jurisdictions. For instance, in Craft v. Economy Fire & Casualty Company, 572 F.2d 565 (7th Cir. 1978), the court held that an insurer who fails to pay uninsured motorist benefits to its insured without reasonable cause is liable for actual damages "including interest for any undue delay in payment of the policy limits and compensation for any other injury proximately caused by [the insurer's] breach" (572 F.2d at 574); additionally, that court stated: "Since Indiana has recognized a public interest in deterring insurance companies from attempting to exact additional consideration from their insureds[citations omitted]the jury should be allowed to consider an award of punitive damages if the court finds at trial that there is any evidence of fraud, malice, gross negligence, or oppressive conduct." 572 F.2d at 574. More recently, in Black v. Fidelity & Guaranty Insurance Underwriters, Inc., 582 F.2d 984 (5th Cir. 1978), the court held, where an insurer refused to pay uninsured motorist benefits to its policyholder on the unreasonable 885 ground that the policy had been cancelled, when the policy arguably had not been cancelled, that actual damages were properly awarded under the policy, and, further, that the jury should have been permitted to consider an award of punitive damages for the independent tort of unjustified refusal to pay a claim. (at 990). This court recognizes that it has long been the law of South Carolina that: "Breach of contract, however fraudulent the intent impelling or accompanying it, does not of itself give rise to a cause of action for punitive damages." Blackmon v. United Insurance Company, 233 S.C. 424, 105 S.E.2d 521, 523 (S.C.1958). Recently, Chief Justice Lewis in Dunsil v. E. M. Jones Chevrolet Co., 268 S.C. 291, 233 S.E.2d 101, 104 (S.C.1977) stated: "But that, in order to recover punitive damages for breach of contract, the breach must have been accomplished with fraudulent intent and accompanied by a fraudulent act." (concurring). The rejoinder to these respected quotations is that, like Tyger River, an insurer may sue in tort under this new theory rather than ex contractu. As Chief Justice Lewis recognized: "Our decisions clearly show that the rule in contract cases, requiring proof of a fraudulent act accompanying the breach to recover punitive damages, is a much more strict rule of liability than that applied in tort cases where recovery of punitive damages is allowed upon proof of a wilful, wanton or reckless act." 233 S.E.2d at 104 (concurring). While the Fifth and Seventh Circuit cases noted above concern first party liability under an uninsured motorist provision, the insurer in a PIP[10] case stands in an even more precarious position with respect to a duty to settle for, while it is the right and duty of an uninsured motorist carrier to defend the original suit brought by its insured in which the insurer can raise such issues as the insured's contributory negligence, in a PIP case this court believes that payment was envisioned by the Legislature to be made immediately without the necessity of litigation, except in rare instances. Thus, this case presents a more compelling argument for the imposition of a duty of due care apart from that imposed under normal contract principles.[11] Although the two recent federal cases herein cited construed the law of Mississippi and Indiana, respectively, and recognizably are not controlling here, they do indicate the "vanguard" of liberal thought in this area. In its most recent pronouncement to date concerning punitive damages against insurance companies, the South Carolina Supreme Court let stand an award of $800.00 actual damages and $8,700.00 punitive damages against a first party insurer that refused to settle a property damage claim based on a collision policy and, subsequently, sold the insured's car without her consent. King v. Allstate Insurance Company, S.C., 251 S.E.2d 194 (1979). While the punitive damages were technically awarded for the conversion of the car, the court indicated displeasure with the insurer's attitude toward its insured: "The company made no effort to settle her claim even though she contacted the company on fifteen occasions during the ensuing four months." While the quoted language was used by the court to bolster its determination that something more than a "technical conversion" (at 196) had occurred, this opinion as a whole reflects an attitude of substantial concern for the rights of policyholders treated unfairly by their insurers, an attitude which this court, sitting under Erie, must attempt to capture and apply to the case at bar. This court feels that the same concern voiced in the King opinion would be 886 voiced by the South Carolina Supreme Court in a proper case to recognize an action in tort for wrongful failure to settle a first party insurance claim, giving rise to punitive damages upon proof of a willful, wanton or reckless act.[12] Based on the views heretofore expressed that a cause of action as described herein may be maintained under the law of South Carolina, and that such cause of action may involve actual damages for elements other than the amount claimed under the policy and substantial punitive damages, which meet the jurisdictional requirement of this court, the defendant's motion to dismiss is denied; the defendant shall have thirty (30) days from the date hereof to answer, plead, or file any other appropriate motions herein (F.R.C.P. 12(a)). AND IT IS SO ORDERED.[13] NOTES [1] A third type of abstention arises in a situation where, absent state bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Abstention has also been approved in "exceptional circumstances" where an action raising dispositive issues is presently pending before a state court between the same parties. Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). [2] Assuming that any other elements of actual damages would not, under the facts of this case, be substantial. [3] Erie Railroad v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). [4] Tyger River Pine Co. v. Maryland Casualty Co., 170 S.C. 286, 170 S.E. 346 (1933). [5] While much of the following discussion may also be relevant to first party claims made under health, disability, life, and property insurance policies, the present case presents only the question of the extension of the duty of good faith to the policy described in the body of this Order. [6] This view was expressly rejected by the Seventh Circuit Court of Appeals in Eckenrode v. Life of America Insurance Company, 470 F.2d 1, 5, n. 5 (7th Cir. 1972) where the court, in allowing a cause of action similar to that proposed here, said that a statute, similar to South Carolina Code § 38-9-320, ". . . by its [very] terms is limited to attorney['s] fees and does not militate against our decision." Not only is § 38-9-320 similarly limited, but it expressly recognizes, in the emphasized language, that attorney's fees are awarded in addition to damage amounts "otherwise recoverable." [7] Cf., Lane v. Trenholm Building Co., 267 S.C. 498, 229 S.E.2d 728, 731, n. 3 (1976) where the Supreme Court remarked: "Our Legislature continues to place South Carolina in the vanguard of consumer protection." [8] However, this court's distinguished brother on the federal bench, the Honorable Robert F. Chapman, has recently held that retroactive application of a private cause of action to contracts entered into before the effective date of the statute would violate the Impairments of Contracts Clause (Art. 1, § 10) of the United States Constitution, Garris v. Hanover Insurance Company, (C/A # XX-XXXX, 12/30/78). [9] Such damages would vary according to the type of contract. For example, in a PIP case, such as involved here, the insurer might be liable for any penalty imposed by the medical services provider on the insured who is unable to pay his medical bills without his insurance check. Whether an insured who suffered mental distress as a result of the failure to pay PIP benefits could recover damages for such distress depends on the nature of his cause of action. See, Dawkins v. National Liberty Life Ins. Co., 252 F.Supp. 800 (D.S.C.1966). Compare, Fletcher v. Western National Life Insurance Company, 10 Cal.App.3rd 376, 89 Cal. Rptr. 78 (4th Dist., Cal.Sp.Ct. hearing denied 1970). In Dawkins, Judge Hemphill held that mental distress is too remote an element of damages in an action ex contractu arising from an insurance policy breach to be considered as having been in the minds of the contracting parties when the policy was signed, (at 802); here, however, the cause of action proposed is ex delicto. The recent opinion of the South Carolina Supreme Court in Hutson v. Continental Assurance Co., S.C., 237 S.E.2d 375 (1977) makes the distinction clear: "The rule in contract actions is to be distinguished from the rule in tort actions. In tort actions, damages may be recovered for all injuries which proximately follow, whether or not such injuries could have been anticipated or contemplated. In breach of contract actions, only such damages as may reasonably be supposed to have been in the contemplation of both parties at the time the contract was made may be collected." at 379. Thus, there appears to be no conflict between allowing damages for emotional distress in a tort action while denying such damages in a contract action arising out of the policy itself. It is clear in South Carolina that "emotional distress" is a proper element of tort damage as long as such distress encompasses some physical manifestation. As stated in Spaugh v. A. C. L. Railroad Co., 158 S.C. 25, 155 S.E. 145, 147 (1930): "In order to receive bodily injury, it was not necessary that the plaintiff should lose a limb or receive a broken limb, or have wounds inflicted on her body. Having her nervous system injured, and being made sick, in the manner she testified, constitute bodily injury . . ." As can be seen from the quoted language, the often misunderstood doctrine that "there is no recovery in South Carolina for mental suffering" means only that in the absence of "bodily injury" (as broadly defined above) plaintiff cannot recover in tort for humiliation, embarrassment or insult; however, once "bodily injury" is proven, plaintiff may recover for mental anguish or fear as well as for the more tangible aspects of such injury. Padgett v. Colonial Wholesale Distributing Co., 232 S.C. 593, 103 S.E.2d 265 (1958); Folk v. Seaboard Air Line Railway, 99 S.C. 284, 83 S.E. 452 (1914). In the recent case of Bellamy v. General Motors Acceptance Corp., S.C., 239 S.E.2d 73 (1977), the South Carolina Supreme Court held that a debt collector, whose conduct was "clearly unreasonable and abusive" in refusing to leave plaintiff's home (at 74), was subject to damages for "willful, wanton and malicious" imposition of "emotional distress and resulting physical illness." While this case arose from a debtor-creditor relationship, it is easy to understand that a bad faith refusal to pay first party insurance benefits could have adverse effect on an insured's health. It is a matter of common knowledge that one who makes claim for such benefits usually does so immediately following some trauma (accident, sickness, fire, death) and, therefore, wrongful failure to pay such benefits may likely cause the one so denied to suffer physical and emotional bodily injury. As pointed out in Hutson v. Continental Assurance Co., supra, it is not necessary that tort damages be anticipated, as long as they proximately flow from the breach of duty. This court feels that physical and emotional "bodily injury" can be a proximate result of a breach of the tort duty to settle first party claims reasonably, and in good faith. [10] A PIP benefit clause is, in effect, a hospitalization-disability policy contained within the usual auto liability policy. See, South Carolina Code § 56-11-110 (1976). [11] For a recent annotation listing jurisdictions adopting in whole or in part (legislatively or judicially) a cause of action similar to that discussed here, see 47 A.L.R.3rd 314 "Insurer's Liability For Consequential or Punitive Damages for Wrongful Delay or Refusal to Make Payments Due Under Contracts." [12] Although South Carolina, as has been noted here, has been placed in the vanguard of those states providing protection to citizens injured in their person or property, it appears that she will be required to take a position slightly behind the leaders on this question. In addition to the two recent federal Appeals Court opinions noted herein, several other jurisdictions have recognized (judicially or legislatively) a duty of first party insurers to be fair with their insureds, though those jurisdictions differ to some extent as to the elements of the cause of action and the recovery. For instance, in Escambia Treating Co. v. Aetna Casualty & Surety Co., 421 F.Supp. 1367 (N.D.Fla.1976), the court concluded that an unreasonable, bad faith refusal to pay first party benefits would give rise to compensatory damages and, if the acts complained of were committed "with malice, moral turpitude, wantonness, willfulness, outrageous aggravation, or reckless indifference to the rights of others" (at 1371) punitive damages would be warranted. In reaching its conclusion, the court cited several California decisions holding that the duty to act fairly in dealing with first party insureds and the almost universally accepted duty to reasonably defend and settle third party suits "are merely two different aspects of the same duty" (at 1370). In Eckenrode v. Life of America Insurance Co., 470 F.2d 1 (7th Cir. 1972), the court held that actual, but not punitive damages, could be awarded for "outrageous conduct" by the insurer which intentionally or recklessly caused an insured emotional distress in refusing to settle a first party claim. (at 4). The court noted that Illinois (like South Carolina) had a statute awarding attorney's fees for bad faith failure to pay benefits, but it rejected the insurer's argument that the statute impliedly limited recovery to the amount or elements set forth in the statute. (at 5, n. 5). In Phillips v. State Farm Mutual Automobile Insurance Co., 437 F.2d 365 (5th Cir. 1971), the court, through then-Judge Griffin Bell, recognized that under Georgia law, "a frivolous and unfounded failure to pay a valid claim" (at 369) would, by statute, give rise to damages of 25 per cent in excess of the loss insured, as well as attorney's fees. To the same effect is Tyber v. Great Central Insurance Co., 572 F.2d 562 (6th Cir. 1978) [construing a similarly worded Tennessee statute]. See also, Miller v. Mutual of Omaha, (D.Kan. Aug. 22, 1972) 21 ATLA L.Rep. 416 (Nov., 1978) [$47,500.00 settlement from the "People Who Pay" in action for bad faith refusal to pay first party disability benefits under a $3,000.00 policy; case discussion reports that in an earlier case, the court had indicated that "if the Kansas Supreme Court had the chance, they (sic) would adopt this cause of action"] but see, D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., Pa.Super., 396 A.2d 780 (1978) [equally divided state supreme court lets stand lower court decision refusing to allow tort action for unreasonable failure to pay benefits under property insurance policy], Frizzy Hairstylists, Inc. v. Eagle Star Insurance Co., 93 Misc.2d 59, 403 N.Y.S.2d 389 (1977) [cause of action allowed but punitive damages refused]. For a recent article listing the jurisdictions adopting some variant on the cause of action approved here, see, 85 Case & Comment 48 (1978). [13] This court notes that if it should again be wrong in its prognostication of state law, Rabon v. Guardsmark, Inc., 571 F.2d 1277 (4th Cir. 1978), it will be in distinguished company. Compare, Hill v. James Walker Memorial Hospital, 407 F.2d 1036 (4th Cir. 1969) [liability insurance subjects hospital to retroactive liability for torts after abrogation of charitable immunity in North Carolina]; with, Helms v. Williams, 4 N.C.App. 391, 166 S.E.2d 852 (1969) [liability insurance does not subject hospital to retroactive liability for such torts notwithstanding Fourth Circuit View in Hill]. Also compare, Clouse v. American Mutual Liability Insurance Company, 344 F.2d 18 (4th Cir. 1965) [compliance with South Carolina Title Certificate Law necessary to transfer ownership of motor vehicle for purposes of determining its ownership under insurance policy] and Security General Insurance Company v. Universal Underwriters, 384 F.2d 1000 (4th Cir. 1967) aff'g. 263 F.Supp. 74 (D.S.C.1967) [reaffirming Clouse] with, St. Paul Fire and Marine Insurance Company v. Boykin, 251 S.C. 236, 161 S.E.2d 818 (1968) [". . . we do not agree that the decision of the Clouse case correctly interpreted [the South Carolina Title Certificate Law]"; court finds Clouse court compounded its error by misconstruing both registration/licensing and transfer of ownership sections of South Carolina Code].	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520305/	486 S.W.2d 468 (1972) STATE of Missouri, Respondent, v. Edward Leslie WILLIAMS, Appellant. No. 57559. Supreme Court of Missouri, Division No. 2. November 13, 1972. 469 John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent. Larry R. Marshall, Columbia, for appellant. HOUSER, Commissioner. Edward Leslie Williams, charged with illegal possession of Marijuana, tried and convicted by the court without a jury, and sentenced to two years' imprisonment has appealed. We have jurisdiction of this felony appeal because the notice of appeal was filed prior to January 1, 1972. Constitution of Missouri, 1945, Art. V, § 31, V. A.M.S. In April, 1969 appellant was convicted of malicious destruction of property, a misdemeanor. Paroled by the judge of the Randolph County Circuit Court, his parole was revoked in June, 1970 and he was incarcerated in the county jail. In October, 1970 he was again paroled by order of that circuit court conditioned that he maintain residence at Halfway House in Columbia, a regional treatment center operated by the state board of probation and parole for high-risk parolees and probationers. The primary reason the parole officers recommended that appellant be placed in residence there was their feeling that appellant needed "very intensive supervision." The residents of Halfway House were under the direct supervision of board officer Kauffman, who lived with his wife on the premises in an apartment on the first floor. Kauffman's entire case load consisted of the 7 or 8 residents. A treatment-oriented facility, Halfway House is an older home with four bedrooms and a bath on the second floor, Kauffman's living quarters on the first floor, and four rooms, including a kitchen and bedroom, in the basement. Officer Kauffman was responsible to his supervisor and ultimately to the court for all the people residing there; for physically taking care of the home; maintaining the property; dealing with the residents; trying to help the individuals to deal with society, keep out of prison and avoid further trouble with the law. As a part of his responsibility Kauffman frequently visited all parts of the house to see whether the residents were keeping their rooms clean, whether repairs were necessary, etc. Appellant and two other parolees occupied one of the upstairs bedrooms, which had a common walk-in closet. Individual rooms were not 470 equipped with locks and keys. Appellant signed documents agreeing to abide by certain rules while living at Halfway House, such as keeping his room clean, not possessing liquor or narcotics, etc. These documents did not expressly waive appellant's constitutional rights as to unreasonable searches and seizures. Residents were required to pay a certain percentage of their earnings as rent and were told to consider Halfway House to be their home. Officer Kauffman conducted group therapy sessions with the residents from time to time, and communicated with and observed appellant's behavior "every day practically speaking." Officer Perry, Kauffman's immediate superior, spoke to appellant twice about drugs, prior to the latter becoming a resident of Halfway House. On these occasions appellant told Officer Perry his feelings about drugs, stating that he had used drugs; that he felt the laws pertaining to marijuana were "unrealistic"; that it was unfair for society to have laws making it illegal; that it was a matter for individual decision whether or not to use drugs, and that in his opinion there was nothing wrong with using drugs, particularly marijuana. After becoming a resident of Halfway House appellant on several occasions expressed the same views to Officer Kauffman, who concluded that appellant's attitude was one of disagreement with the laws, and that he had a propensity to be involved in drugs. Although Kauffman had never seen appellant with marijuana or other drugs in his possession or on the premises he became suspicious of his behavior and actions, considering appellant's past experience with drugs and his views on drug use, the fact that twice liquor had been found on the premises, and that on the day in question two people (hippie types, with long hair and bizarre clothing) stopped at Halfway House, asked to see "William Edwards," and when told there was no one residing there by that name looked confused and said he had told them he lived at that address. On the evening of November 5, 1970, in the absence of appellant and without his consent, Kauffman "decided to just take a look around." He entered appellant's room without a search warrant or arrest warrant and searched for what he thought might be contraband. Kauffman thought he had a right to make the search as a parole officer and for the further reason that he was responsible for the house and for each resident; "responsible for anything they might do while living there that [might] reflect upon other residents or the facility in general." Kauffman went into the closet and examined the contents of appellant's knapsack, which he found on top of a dresser in the closet. At the bottom of the knapsack, under some dirty laundry, Kauffman found a paper bag containing eight packets of material which laboratory examination proved to be marijuana. Kauffman reported to his superior, Officer Perry, who suggested that the city police be called and that appellant be picked up on a parole violation warrant. Kauffman made out and signed such a warrant, directed to the police chief, and took it to the police station. Three uniformed city police officers then took appellant into custody about 1:15 or 1:30 a. m. on November 6 and the three police officers, together with Officer Kauffman, brought appellant to the police station. There he was interviewed in the reception room by Parole Officers Perry and Kauffman for about 20 minutes. Officer Perry at that time advised appellant that he did not have to answer any questions; that if he did what he said could be used against him in court; that if at anytime during the questioning he chose not to answer he did not have to do so and that he had a right to have an attorney present during questioning. He omitted to inform appellant that the court would appoint an attorney if he could not afford one. In the course of the conversation appellant stated that the marijuana found in his room was in fact his and that he obtained it from a friend who owed him a debt for past favors. 471 Sometime between 9 and 10 a. m. on November 6 Officer Kauffman delivered to the Columbia Police Department the substance found in the search. City Police Officer Muse interrogated appellant, beginning about 10 a. m. on that date. Before doing so he fully advised appellant with respect to his constitutional rights, including his right to appointment of counsel if unable to afford a lawyer, following which he took written statements in which appellant admitted his guilt of possessing marijuana. No promises, offers, threats or coercive measures were employed and appellant was cooperative. A motion to suppress the evidence gained by the search was filed and overruled. Thereafter a motion to suppress the incriminating oral and written statements was filed, taken with the case and eventually overruled. Appellant asserts that although a parolee he was entitled to certain basic constitutional rights against unreasonable searches and seizures and self-incrimination; that the court erred in admitting in evidence the marijuana and the testimony of the parole and police officers because the narcotic and the incriminating statements were the fruit and product of an unlawful seizure and arrest of appellant; that the search was made without probable cause, warrant or other lawful authority and not as an incident to a lawful arrest; that the evidence was obtained in violation of appellant's privilege against self-incrimination; that appellant was not properly advised that he had a right to remain silent and anything he said could be used against him in a new felony proceeding, and that he did not knowingly, intelligently and voluntarily waive his right against self-incrimination; that the statements were obtained in violation of his constitutional rights to counsel, in that he was not advised that an attorney would be appointed for him if he could not afford one, and that he had a right to have counsel present during questioning and did not waive that right; that the oral statement constituted the fruit of an unlawful search because the arrest resulted from an unlawful search and seizure; that the subsequent written statements introduced in evidence were a direct result of the previous illegally obtained oral statement to the parole officers. We start out with the State's concession that the warrantless, exploratory search, not made as an incident to a lawful arrest, "would have been illegal if an ordinary citizen had been the subject of the search" because of lack of probable cause. Noteworthy is the further fact that appellant's conviction did not suspend his civil rights under § 222.010[1] for the reason that he was convicted of a misdemeanor and sentenced to imprisonment in a county jail (and not to imprisonment in "an institution within the department of corrections"). Finally, the search was instituted and made by a parole officer acting on his own initiative, so we do not have the complicating factor of a search conducted by a parole officer acting as the agent, tool or "front" for the police, or at the instigation of or jointly with the police. In this background and under the particular circumstances of this case the court did not err in overruling the motions to suppress the fruits of the search and in admitting in evidence the marijuana. The first broad question is whether this parolee, living under close, daily supervision and surveillance of a parole officer in a state-operated treatment facility under a restricted regimen designed to serve the twin purposes of protecting society and rehabilitating the parolee, is entitled to the 472 same constitutional protection from unreasonable searches and seizures enjoyed by other citizens who have not been in the toils of the law. The narrow included question is whether the search of appellant's room and effects and the seizure of contraband by appellant's parole officer under the circumstances of this case violated his constitutional rights. This is a case of first impression in Missouri. While there is a division of authority elsewhere we are persuaded that the decisions in California and New York point the way to the proper answer to these questions. We recognize that a parolee by virtue of his status is not thereby deprived of all protection against unreasonable searches and seizures and other invasions of constitutional rights.[2] On the other hand, a parolee is not afforded the full panoply of constitutional protection enjoyed by ordinary citizens possessed of full civil rights, and a search of a parolee's premises is not to be tested by the rules applicable to the latter. People v. Thompson, 252 Cal.App. 2d 76, 60 Cal.Rptr. 203, 209 [1]; People v. Quilon, 245 Cal.App.2d 624, 54 Cal.Rptr. 294, 297 [2]. Inmates of prisons may be subjected to intense surveillance and search, unimpeded by Fourth Amendment barriers. Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384. "A convict loses a great measure of his protection against unreasonable searches and seizures." Burns v. Wilkinson, W.D.Mo., 333 F.Supp. 94, 96. The reasons are related to security or rehabilitative purposes. Jones v. Wittenberg, N.D.Ohio, 323 F.Supp. 93, 98 [3]. Likewise, on analogy, the constitutional rights of parolees are curtailed for the following reasons: Prisoners released from imprisonment on parole are held to have accepted the favor of a parole subject to that degree of surveillance and search required under the circumstances for the effective supervision of the parolee and the protection of the public. Although physically no longer behind the walls a prisoner released on parole is not free. He is at all times in custodia legis, under the limitations and conditions of a parole order which at all times is subject to revocation in the discretion of the circuit judge. § 549.101. The parolee is still a prisoner in a legal sense insofar as it is necessary to maintain supervision over him. In order to promote the objective of rehabilitation, diminish recidivism and concurrently safeguard society from further criminal depredations close supervision, surveillance and control of parolees by correctional authorities is vital. People v. Denne, 141 Cal.App.2d 499, 509, 297 P.2d 451. Because of the conditional nature of the parolee's freedom some diminution of his right of privacy necessarily results and some intrusions by parole officers may be reasonable "even if the information relied on by the parole officer does not reach the level of probable cause generally required under the Fourth Amendment". People v. Anglin, 18 Cal. App.3d 92, 95 Cal.Rptr. 588, 589 [1], citing four California cases. And see People v. Gilkey, 6 Cal.App.3d 183, 85 Cal.Rptr. 642, 645. The following cases arising in the State of New York reaffirm the principle of law that a parolee's Fourth Amendment protection against unreasonable searches and seizures by his parole officer is diminished on account of his status as a parolee. United States ex rel. Randazzo v. Follette, 2 Cir., 418 F.2d 1319; People v. Way, 65 Misc.2d 865, 319 N.Y.S.2d 16; People v. L'Hommedieu, 62 Misc.2d 925, 310 N.Y.S.2d 369; People v. Sickler, 61 473 Misc.2d 571, 306 N.Y.S.2d 168; People v. Chinnici, 51 Misc.2d 570, 273 N.Y.S.2d 538; People v. Langella, 41 Misc.2d 65, 244 N.Y.S.2d 802; People v. Santos, 25 N.Y.2d 976, 305 N.Y.S.2d 365, 252 N.E.2d 861; People v. Randazzo, 15 N.Y.2d 526, 254 N.Y.S.2d 99, 202 N.E.2d 549, cert. den. 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725. Neither the Fourth Amendment nor comparable state constitutional provisions insulate a parolee from reasonable scrutiny. "The distinction is that the protection afforded by the Fourth Amendment is only against unreasonable searches, and what is reasonable in the case of a parolee is not the same as what is reasonable in the case of another (United States ex rel. Randazzo v. Follette, 282 F.Supp. 10). The very concept of parole entails a degree of supervision of parolees consonant with its purposes. Included within that supervision would be such searches as would reasonably be called for." People v. Santos, 31 A.D.2d 508, 298 N.Y.S.2d 526, 528 [5]. "He may not assert these guaranties against the correctional authorities who supervise him on parole. (See Story v. Rives, 68 App. D.C. 325, 97 F.2d 182, 188.) If this constitutional fact strips him of constitutional protection against invasions of privacy by his parole officer, the answer is that he has at least as much protection as he had within the prison walls. He did not possess this guaranty in prison and it was not restored to him when the gates of parole opened." People v. Hernandez, supra, 40 Cal.Rptr. 1. c. 104 [7]. In the case of appellant, who was in daily close contact with his parole officer in a living situation in which his life, conduct and activities were an open book under constant surveillance, the parole officer was authorized by the very nature of their relationship to subject him, his room and his effects to inspection and search if in the reasonable exercise of the officer's judgment in the administration of the parole such an inspection and search was deemed advisable. People v. Hernandez;2 People v. Quilon, supra; People v. Triche, 148 Cal.App.2d 198, 202-203, 306 P.2d 616, 618; People v. Robarge, 151 Cal.App.2d 660, 665-666, 312 P.2d 70; People v. Thompson;2 People v. Denne, supra. Officer Kauffman was possessed of sufficient information to arouse suspicion that this parolee was involved in some way in drug use or traffic, and we cannot say that his exercise of judgment in determining to make the search was unreasonable under the circumstances. On the contrary, considering the information possessed by the parole officer, the special relationship between him and appellant at Halfway House, and his responsibility not only to appellant but also to his supervisor and to the public at large, the parole officer's action meets the test. See People v. L'Hommedieu, supra; People v. Denne, supra. We rule the search not unreasonable under constitutional provisions and the marijuana seized in the search properly admissible in evidence. The judgment of conviction, however, must be reversed for error in the admission in evidence of (1) the testimony of Parole Officers Perry and Kauffman, both of whom testified that following his arrest, and at the city police station under questioning by Officer Perry, appellant admitted that he acquired possession of the marijuana, after Officer Perry, in apprising appellant of his Miranda rights, failed to inform him that the court would appoint an attorney for him if he could not afford one; (2) the testimony of the police officer who subsequently took a written confession from appellant, and (3) the written confession. The court erred in receiving (1). At the time the incriminating statement was made to the parole officers appellant had been arrested by uniformed police officers, taken by them to the police station in the early hours of the morning suspected of the commission of another and independent crime, interrogated by parole officers in a police department atmosphere after having been deprived of his freedom as 474 a parolee, and after the constructive custody on parole had been transformed into actual physical custody under circumstances involving the "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," thus requiring adequate, effective and full apprisal of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694, 719, 10 A.L.R.3d 974, 1007. Miranda requires officers of the Missouri State Board of Probation and Parole in the investigation of facts involving the possible commission by an indigent parolee of a fresh or new felony to give the parolee all four of the Miranda warnings, where he has been arrested and taken into actual police custody. State v. Lekas, 201 Kan. 579, 442 P.2d 11; People v. Gastelum, 237 Cal. App.2d 205, 46 Cal.Rptr. 743. "In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigentthe person most often subjected to interrogationthe knowledge that he too has a right to have counsel present." (Our italics.) Miranda, 384 U.S. at 473, 86 S.Ct. at 1627. Miranda requires complete advice on all four points. Warnings which omit the advice that an attorney will be appointed for the suspect if he cannot afford an attorney are fatally defective. United States v. Fox, 2 Cir., 403 F.2d 97; Byers v. Oklahoma City, Okla.Crim.App., 497 P. 2d 1302; Groshart v. United States, 9 Cir., 392 F.2d 172. And see Windsor v. United States, 5 Cir., 389 F.2d 530; Duckett v. State, 3 Md.App. 563, 240 A.2d 332; Brown v. Heyd, E.D.La., 277 F.Supp. 899. The court erred in receiving (2) and (3) above for the reason that the subsequent confessions were the tainted fruit of the illegally obtained incriminating statements made to the parole officers by appellant a few hours earlier in the same morning, under the authorities cited and for the reasons elaborated in State v. Lekas, supra, 442 P.2d 1. c. 18-20, under substantially the same factual background. Reversed and remanded for a new trial. STOCKARD, C., concurs. PER CURIAM: The foregoing opinion by HOUSER, C., is adopted as the opinion of the Court. MORGAN, P.J., and HENLEY, J., concur. DONNELLY, J., concurs in result. NOTES [1] All section references are to RSMo 1969. V.A.M.S. Section 222.010 provides: "A sentence to imprisonment in an institution within the state department of corrections for a term less than life suspends all civil rights of the persons so sentenced during the term thereof, and forfeits all public officers and trust, authority and power: and the person sentenced to imprisonment for life shall thereafter be deemed civilly dead." [2] For instance, he may assert constitutional guaranties and safeguards against arbitrary or oppressive official action, invidious discrimination, harassment, etc. People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100, 104; In re Jones, 57 Cal.2d 860, 862, 22 Cal.Rptr. 478, 372 P.2d 310; People v. Thompson, 252 Cal. App.2d 76. 60 Cal.Rptr. 203, 209 [1]; United States ex rel. Sperling v. Fitzpatrick, 2 Cir., 426 F.2d 1161, 1164 [5]. See also Brown v. Kearney, 5 Cir., 355 F.2d 199, 200; Martin v. United States, 4 Cir., 183 F.2d 436, 439; United States v. Hallman, 3 Cir., 365 F.2d 289, 291.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520313/	486 S.W.2d 596 (1972) Ernest E. GUSTASON, Appellant, v. NORTHEAST NATIONAL BANK et al., Appellees. No. 17331. Court of Civil Appeals of Texas, Fort Worth. October 13, 1972. Rehearing Denied November 10, 1972. 597 Puff & Jameson, and Jim Jameson, Fort Worth, for appellant. King & Massey, Inc., and Marion L. Massey, Fort Worth, for appellees. OPINION LANGDON, Justice. This appeal is from a summary judgment in a suit initiated by the plaintiff, Ernest E. Gustason, appellant herein, against the defendants, Northeast National Bank and Robert Harrison, an officer of the Bank, appellees herein. The suit is based upon the alleged wrongful dishonor of two checks at a time when Gustason claims he had on deposit sufficient funds to cover said checks. According to the pleadings one of the checks was dated September 4, 1970. It was dishonored on September 12, 1970. This check in the amount of $15.00 was payable to the Hillview Motel. The second check was dishonored between August 29, 1970, and September 15, 1970. This second check was payable to the Clerk of the District Court, Hays, Kansas. The date and the amount of the second check is not revealed by the pleadings or elsewhere in the record. The defendants' (appellees) defense of the suit is based upon the provision of a Security Agreement which was duly assigned to it. The Security Agreement was executed by Gustason in connection with his purchase of an automobile from the Joe Adams Motor Company securing his debt (evidenced by a note) for the balance of the purchase price of the automobile. The only affidavit of record is one by the defendant, Robert Harrison. The affidavit in part states: "I negotiated the assignment of the Security Agreement-Retail Installment Contract dated June 15, 1970... said ... Installment Contract being assigned to NORTHEAST NATIONAL BANK by Joe Adams Motor Company by Joe Adams on June 15, 1970. The first payment due and payable by Ernest E. Gustason under ... said Security Agreement was due on July 18, 1970. No payment was ever received by NORTHEAST NATIONAL BANK and the July 18, 1970, payment as well as the August 18, 1970, payment was constantly in default. On or about September 1, 1970, after repeated demands upon Mr. Gustason to make his payments current under said contract, I did, on behalf of NORTHEAST NATIONAL BANK elect to and did consider the total obligation immediately due and payable. On or about September 1, 1970, I debited the checking account of Mr. Gustason in the amount of $154.99, being the $147.61 payment plus $7.38 late charge for the July 18th payment and retained the $80.88 balance in the checking account as collateral to be applied against the balance of the note. Through an error by a bank employee, Plaintiff obtained the $80.88. On or about September 28, 1970, NORTHEAST NATIONAL BANK did come into possession of the 1968 Cadillac automobile which was offered at public sale and said automobile was sold on October 12, 1970, for $3,200.00. After allowing Mr. Gustason all credits and offsets including a refund in the amount of $92.91 as unearned premiums on the insurance on said automobile, and $186.28 refund on the credit life insurance and accident and health insurance in connection with the financing of said automobile, and a rebate on the financing charges in the amount of $533.90, there was a balance due and owing on the obligation of Mr. Gustason to said Bank in the amount of $267.60. Any act taken by me on behalf of NORTHEAST NATIONAL BANK, or otherwise, has been under the terms and provisions of the 598 Security Agreement-Retail Installment Contract, dated June 15, 1970, heretofore referred to, as I understood and now understand the provisions of said contract." (Emphasis by italics added.) The Bank cross-filed for the $267.60 deficiency referred to in the affidavit. Plaintiff filed a motion for a partial summary judgment in which he urged the Bank to be held liable for such legal damages as he may be able to later prove upon trial of this cause. The defendant Bank then answered the plaintiff's motion and filed its motion for summary judgment which was granted by the Court. Appellant on this appeal asserts it was error to hold the defendant Bank had no liability for converting appellant's bank account funds to its own use without consent of the depositor and in granting the judgment on all aspects of the case when there were issues of fact necessary for defendant to prove in order to establish a case for deficiency judgment. We reverse and remand. V.T.C.A., Bus. & C., § 4.402, "Bank's Liability to Customer for Wrongful Dishonor," provides that, "A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case." In 8 Tex.Jur.2d 446, "Banks," Sec. 261, "Dishonor of check by bankLiability to drawer," it is said that, "When a drawer of a check has on deposit funds available for payment, refusal to pay the check renders the bank liable to him in damages, unless the bank has a lawful excuse for nonpayment, as by reason of the drawer's insolvency and the consequent appropriation of the deposit to a debt due to the bank itself. The bank's liability for wrongful dishonor of a check is fixed as of the date of its occurrence. The cause of action is based on contract, and though it may be joined, as against the bank, with a cause of action sounding in tort, there may be misjoinder if the latter cause of action is asserted against an officer of the bank individually as well as against the bank. In order to support the action, there must be both allegation and proof that money sufficient to pay the check was on deposit in the bank at the time when the check was presented; but when a prima facie case against the bank is thus made out, the burden is then on the bank to establish any defense exonerating it from liability. "Damages may be recovered for loss of time, money, and credit, provided a foundation for such recovery is laid by the pleadings, but not otherwise. But exemplary damages based on malice or damages for mental suffering are not recoverable." The Security Agreement assigned to the Bank was couched in reasonably definite and certain language. It granted a security interest in all deposits maintained by the debtor with the Bank and any property of debtor in possession of Bank at any time (hereafter called "collateral"). Under the Security Agreement and the Uniform Commercial Code the Bank had the right to declare the debt due and payable and to take possession of the collateral which included the car and the deposits maintained in the Bank by the debtor (appellant). In his brief the appellant concedes that the Bank had the right to take possession of his bank account. He complains that he was not given notice of any action by the Bank in taking possession of his account and was thereby deceived into believing that he had money in his bank account to cover checks that were returned to the payee because of insufficient funds. *599 The record does not reflect the date of or the manner by which the Bank took possession of the appellant's bank account. In his affidavit Harrison states that he elected to and did consider the total obligation due and payable. It is not clear from the affidavit whether Harrison is describing his state of mind or some overt act on his part which appears in the records of the Bank. The statement standing alone is not evidence. Further in his affidavit Harrison states that through an error by a bank employee, the plaintiff (appellant) obtained the balance of $80.88 remaining in the account after the checking account was debited in the sum of $154.99, representing the car payment and late charge. This statement represents a conclusion on the part of Harrison. Standing alone it is not evidence. The statement also suggests that the bank employee was not aware of any action on the part of the Bank to take possession of the account. We are unable to determine from the record before us whether or not the dishonored checks were presented for payment before or after the $80.88 was withdrawn by the appellant. We do not know from such record whether or not the $80.88 would have covered the two checks. It is conceded that the Bank had a right to take possession of the bank account. We are unable to determine whether or not it did so. If the Bank did take possession of the funds in the appellant's account we are unable to determine the date such action was taken and the mechanics of how it was done. "To entitle a party to a summary judgment, the provisions of this rule must be strictly complied with." Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961). "... Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.... the evidence must be viewed in the light most favorable to the party opposing the motion." Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.Sup., 1965). "The facts stated in an affidavit given in support of a motion for summary judgment must be so worded that if the testimony were given from the witness stand during the trial it would be admissible." Crain v. Davis, 417 S.W.2d 53, 55 (Tex.Sup., 1967). The judgment of the trial court is reversed and the cause of action is remanded to the trial court for a trial on the merits.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/8302429/	Mr. Justice Chambliss delivered' the opinion of the Court. This is an appeal from a decree against a lessee on rent notes. It is insisted that the chancellor erred in failing to submit to a jury five issues. The execution in writing of a lease for a term of years is admitted; hut by answer and cross-bill the defendant lessee set up (1) an alleged parol agreement, made prior to the signing of the lease and the rental notes sued on, by which the lessor bound himself to repair or renew a roof on the rented building; and (2) that these repairs were not made, and the roof consequently caved in, to his damage. For complainants it is said that the first three issues were immaterial, for the reason that they could be sustained only by evidence incompetent because in contradiction of the written instrument, and that issues 3 and 4 were not called for by the pleadings. The chancellor so concluded and gave judgment for complainants. We find no error in his decree. Conceding the general rule that evidence is inadmissible to contradict a written agreement, it is insisted for defendant lessee that the alleged parol promise of the lessor, made prior to or contemporaneous with the exe212cution of the lease, to repair or renew the roof, if necessary, was an inducing representation, or consideration, and under authorities cited (Hines v. Willcox, 96 Tenn., 148, 33 S. W., 914, 34 L. R. A., 824, 832, 54 Am. St. Rep., 823, and others) is within recognized exceptions to the rule and therefore admissible. Neither in Hines v. Willcox, supra, nor in cases cited in that opinion, did the proof admitted contradict the recitals of the writing. In the Hines case there was no express stipulation, such as we have here, in the written lease executed by the parties, that the “lessee rents the property herein rented in its present condition,” and that the lessee “agrees to make all necessary repairs on the premises herein rented in order to keep same in a proper and safe state of repair.” Evidence that the lessor had agreed to make necessary repairs on the premises is directly contradictory of the terms of the writing and clearly inadmissible. Parol proof of inducing representations to the making of a contract reduced to writing must he limited to matters not otherwise plainly expressed in the writing. No well-considered case will be found -holding otherwise. The fundamental distinction should he kept clearly in mind between the denied right to contradict the terms of the writing, and the recognized right without so doing to resist recovery thereon, or to rely upon matters unexpressed therein. The ultimate test is that of contradiction, which is never permissible. If in Waterbury v. Russell, 8 Baxt., 159, or in Hogg & Belcher v. Cardwell, 4 Sneed, 157, cited by Mr. Justice Wilkes as supporting the rule that parol evidence is admissible . . . when representations and statements are made as inducements 213to the contract, and form the basis or consideration of it,” the memorandum had not simply “contained no warranty,” but had contained an express contrary recital, evidence of contemporaneous parol representations amounting to warranty would have been inadmissible. Recent cases in this court approving and restating the pertinent rule are McGannon v. Farrell, 141 Tenn., 644, 214 S. W., 432, and Bank v. Barbee et al. (Tenn.), 265 S. W., 371. It follows that the first three issues were properly rejected. The last two issues are not supported by the pleadings. The answer and cross-bill fails to charge that the caving of the roof was caused by the complainants, or their agents, which is the substance of these issues. It is alleged that, while working on an adjoining building, the servants of complainants went upon the roof of the leased building and discovered its faulty condition, but not that this caused the caving in. There must be both pleadings and proof. Moreover, it appears from the opinion of the chancellor that counsel for defendant in substance conceded the immateriality of these two issues. The decree must be affirmed.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/1520319/	486 S.W.2d 776 (1972) Ray NORWOOD, Appellant, v. The STATE of Texas, Appellee. No. 45176. Court of Criminal Appeals of Texas. October 11, 1972. Rehearing Denied December 6, 1972. 777 Harkness, Friedman & Kusin by Harry B. Friedman, Texarkana, for appellant. Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State. OPINION DAVIS, Commissioner. This is an appeal from a conviction for assault with intent to murder with malice. Punishment was assessed by the jury at seven (7) years. The record reflects that appellant shot James Martin, Chief of Police of Wake Village, at the home of one Norma Jean Eddy during the early morning hours of July 23, 1969. Prior to the shooting, Mrs. Eddy had called Martin relative to trouble she had with appellant earlier in the evening. Martin went to the home of Mrs. Eddy where complaints were filed against appellant by Mrs. Eddy for simple assault, disturbing the peace, display of a prohibited weapon and obscene language. Upon Martin arresting appellant a short time thereafter, Martin complied with appellant's request to take him to Mrs. Eddy's house to "see if we couldn't work it out." The shooting occurred after their arrival at the home of Mrs. Eddy. The sufficiency of the evidence is not challenged. At the outset, appellant contends that the court was in error in denying his application for change of venue when the State failed to controvert said motion. In Wall v. State, 417 S.W.2d 59, cited by appellant, this Court said: "... prior to the trial the appellant filed his motion to change venue drafted in compliance with Article 31.03, V.A.C. C.P., and supported by affidavits. (emphasis supplied) The motion was overruled. The motion was uncontroverted by the State either in the form of an affidavit or by the presentation of any evidence justifying the denial of motion, and there was not a waiver by appellant of a controverting affidavit. Under such circumstances, the appellant was entitled to have the venue changed and the Court erred in failing to grant the motion. Cox v. State, 90 Tex.Cr.R. 106, 778 234 S.W. 72; Ross v. State, 93 Tex.Cr. R. 531, 248 S.W. 685; Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019; 1 Branch's Ann.P.C.2d Ed. 356, Sec. 132." In determining whether appellant's motion for change of venue was in compliance with Article 31.03, Vernon's Ann.C. C.P., we look to the pertinent portion of said statute which requires that such a motion be supported by "the affidavit of at least two credible persons, residents of the county where the prosecution is instituted." (emphasis added). Three persons signed an affidavit stating that they had read appellant's motion and the allegations stated therein were true and correct. Neither the motion for change of venue, the affidavits of appellant, nor the affidavits of the three compurgators, indicates that the compurgators were residents of Bowie County. In Gibson v. State, 53 Tex.Cr.R. 349, 110 S.W. 41, the necessity for compliance with the statute was emphasized, the Court saying: "It has been the uniform ruling of this court that, before a defendant is entitled to a change of venue, the provisions of the statute must be complied with. The application must be supported by affidavits of at least two credible persons, residents of the county where the prosecution is instituted." (emphasis added) In the instant case, we find that appellant's motion for change of venue was not in compliance with Article 31.03, V.A.C.C. P., and the court was not in error in overruling same. Appellant contends that "the court erred in allowing the prosecutor to treat and question Norma Jean Eddy as if she was a hostile witness, and tell the jury that she was a hostile witness, when there was no evidence she was hostile." Appellant relies on Perkins v. State, 433 S.W.2d 712, where this Court said that "the district attorney at no time despite repeated objections, claimed surprise nor laid any predicate to justify impeaching his own witness."[1] (emphasis added) It appears that appellant asserts two complaints under this contention, the first of which is directed toward the court "allowing the prosecutor to treat and question Norma Jean Eddy as if she was a hostile witness." We interpret this complaint to mean that the court improperly allowed the State to cross-examine and impeach the witness. We have reviewed the testimony of the witness and fail to find any objection made by appellant on this basis. Absent objection by appellant, nothing is presented for review. Grant v. State, Tex.Cr.App., 472 S.W.2d 531; Verret v. State, Tex.Cr.App., 470 S.W.2d 883. With respect to appellant's complaint that the prosecutor referred to the witness, Norma Jean Eddy, as hostile in the presence of the jury, it is noted that the first two times this occurred no objection was made by appellant. The next time the State referred to the witness as "hostile" appellant made the objection, "We object to these statements before the jury. Why doesn't he read what he has in the statement and ask her if she said that?" If such objection be specific enough to call the court's attention to the use of the term "hostile," it should be noted that appellant never obtained a ruling from the court. See Austin v. State, Tex.Cr.App., 451 S. W.2d 491; Simmons v. State, Tex.Cr.App., 429 S.W.2d 149. Counsel for the State, on another occasion, stated to the court, "Your Honor, please, if the hostility of this witness is not apparent now, it never will be." The court 779 responded, "Well, go ahead with your examination of her." On still another occasion, the prosecutor stated, "The State contends that this witness is hostile to the State and she has made statements inconsistent with previous statements made to the State, which is a surprise to the State and the State wishes to see her as a hostile witness." No objection was made by appellant to these remarks. If the State's reference to the witness being hostile be error, it is not before us for review absent an objection by appellant. The court's comment, "It is obvious she is hostile," is not preserved for review absent an objection. See Ferrell v. State, Tex.Cr.App., 429 S.W.2d 901; Howard v. State, 420 S. W.2d 706; Franklin v. State, Tex.Cr.App., 409 S.W.2d 422; Steese v. State, 170 Tex. Cr.R. 269, 340 S.W.2d 49. Appellant next contends that the court erred in allowing the witness Suzette Gray to testify to a conversation with Norma Jean Eddy out of the presence of the appellant. It is undisputed that after appellant and Martin arrived at the house of Norma Jean Eddy, appellant went to the bathroom to wash his face and, thereafter, appellant, with a pistol in his hand, entered the room where Martin and Mrs. Eddy were present. The only other occupant in her house was Mrs. Eddy's ten year old son who was asleep. The record reflects Mrs. Eddy testified as follows: "Q All right, now when Mr. Norwood came back out with the gun, what did he do with it, if anything? "A Well, when I saw he had a gun, I turned around and I left. "Q Where did you go? "A I went next door. "Q To whose house? "A Sue Gray's." Mrs. Gray testified relative to Mrs. Eddy coming to her bedroom window during the early morning hours of the day in question. Appellant complains of the following testimony of Mrs. Gray regarding the statements of Mrs. Eddy: "A She (Mrs. Eddy) said, `Glenn, Sue, wake up and call the police. Norwood has a gun and is going to shoot James.' We were awakened out of a sound sleep, and it took us a minute to realize who she was talking about, and I said, `Well, Norma, what has happened?' And she said, `You haven't heard the commotion going on over here,' and I said, `No, we hadn'twe had been asleep.' And she said, `Norwood has been over here bothering me and I told him if he didn't leave, I was going to call James to come get him and I did.' And about this time we heard the gun go off, and I only thought of ...." * * * * * "Q ... What if anything did Mrs. Eddy say to you with reference to Mr. Norwood? About his bothering her and her getting rid of him?" * * * * * * "A Well, she was very nervous and upset and she said that he's been pushing me around and I told him to leave me alone. She had been to the doctor in Little Rock earlier with her shoulder. She said, `He was hurting me and I've just had enough of it. I've never been pushed around like this before and I'm not going to stand for it now.' She asked was there any way she could see out and I told her she could go to the end bedroom window and look out. And it wasn't long, in fact almost by the time I got back to the bedroom window that the police had started arriving and she left the house." 780 The foregoing evidence was admitted over appellant's objection that same was hearsay. An important exception to the hearsay rule is the exception for spontaneous utterances. The basis underlying the admission of this class of evidence is a psychological one; namely, the fact that when a person is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the "truth will out." Texas Practice, Evidence, McCormick and Ray, Sec. 913, and cases cited therein. The assertion must have been made so soon after the occurrence that the declarant is still in the emotional grip of the shocking event, and the assertion must relate to the event. Evans v. State, Tex.Cr.App., 480 S.W.2d 387; Patterson v. State, Tex.Cr.App., 458 S.W. 2d 658; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930; Oldham v. State, 167 Tex. Cr.R. 644, 322 S.W.2d 616. In the instant case the utterances were soon after the event, Mrs. Eddy having testified that when she saw the gun in appellant's hand she went next door to the home of Mrs. Gray. The psychological factors which lend credence to a spontaneous utterance were present. The Chief of Police and the appellant whom Mrs. Eddy had filed charges against earlier in the evening came to the home of Mrs. Eddy in the early morning hours. The excitement and anxiety which engulfed Mrs. Eddy are evidenced by her testimony that she left her house immediately when she saw a gun and was unable to testify to anything which transpired after seeing the gun. That stimulus which lends itself to spontaneous statements must have received additional impetus when Mrs. Eddy's statement to Mrs. Gray was punctuated with the sound of gunshot emanating from her (Mrs. Eddy's) house. Mrs. Gray testified that Mrs. Eddy was very nervous and upset. In determining whether an assertion relates to an event, this Court, in Autry v. State, 143 Tex.Cr.R. 252, 157 S.W.2d 924, said, "The principle of `res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to and having a direct causal connection with it.'" In the instant case, we find that the complained of testimony related to the event. No error is shown in the admission of Mrs. Gray's testimony concerning what Mrs. Eddy told her at the time in question. Appellant contends that "the court erred in refusing to charge the jury as to drunkenness or incapacity from drink being considered in mitigation." The record contains evidence that appellant had been drinking or was intoxicated on the night in question. Appellant complains of the court's refusal to grant an instruction that the jury could consider appellant's intoxication in mitigation at the punishment stage of the trial. In Butcher v. State, 161 Tex.Cr.R. 169, 275 S.W.2d 672, it is stated: "The voluntary use of intoxicating liquor will not authorize a mitigation of punishment. Article 36 P.C., Vernon's Ann. P.C. Art. 36, applies only when it has produced temporary insanity. Kincheloe v. State, 146 Tex.Cr.R. 414, 175 S.W.2d 593; Barnett v. State, 144 Tex.Cr.R. 249, 162 S.W.2d 411, 415." We find no proof that appellant was intoxicated or drunk at the time of the crime to the extent that the issue of temporary insanity was raised. The court was not in error in refusing appellant's requested jury instruction. Appellant contends that the court erred in denying his first motion for continuance. This was based on allegations that appellant was ill and physically unable to go to trial. Dr. J. B. Rochelle, III was 781 called by appellant in support of his motion and the record reflects the doctor testified: "Q Will you say whether he (appellant) is a sick person or a well person at this time? "A It depends on the definition. "Q By your definition. "A I think he has defects, yes, but I don't think he is incapacitated from these proceedings here." * * * * * * "Q Is there any reason to believe he is a malingerer? "A There is a suspicion I have. "Q Do you believe it though? "A I do. "Q In the absence of malingering, should he be in the hospital now rather than attending trial? "A As I said before, I think these other studies should be done. I don't know that there is any particular urgency as to this. I think we could manage his complaints as an out patient. He came to the emergency room supposed to be incapacitated, and it is my opinion that he is not incapacitated at all." In view of the foregoing testimony, the court was not in error in overruling appellant's motion for continuance. Appellant contends the court erred in permitting a brother of the prosecuting witness to act as bailiff during the trial. At the hearing on punishment, Lloyd Martin, brother of the victim, testified to the bad reputation of appellant. The court had exempted Lloyd Martin from the rule in order that he might act as bailiff over the objection of appellant. The record does not reflect what, if anything, Lloyd Martin had to do with the jury. When the question was before the court on appellant's objection, counsel for the State stated: "It is agreed that Lloyd Martin is a deputy sheriff of Bowie County, Texas, and James Martin is a police officer of the city of Wake Village, and that Lloyd Martin has not and will not attend the jury in the course of this trial." (emphasis supplied) The United States Supreme Court, in the recent case of Gonzales v. Beto, 405 U.S. 1052, 92 S.Ct. 1503, 31 L.Ed.2d 787 (April 17, 1972), held that a conviction could not stand where the sheriff had acted in the dual role of key witness against the defendant and bailiff of the jury. In Gonzales, the sheriff, on several occasions, conducted jurors in and out of the courtroom, ate with the jurors, brought the jurors cold drinks while they were deliberating and on one occasion, at the direction of the judge, stepped down from the witness stand to retire the jury. In Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, the United States Supreme Court held that petitioner's right to due process of law had been infringed where two crucial witnesses acted as bailiff during the course of a three day trial. In Turner, the jury was sequestered and the two witnesses were in "close and continual association with the jurors." An attempt to distinguish Turner where the trial lasted three days and the jury was sequestered from Gonzales where the jury was not sequestered and the trial lasted one day, was rejected in Gonzales, the Court saying: "It is enough to bring the petitioner's case within the four corners of Turner that the key witness for the prosecution also served as guardian of the jury, associating extensively with the jurors during the trial." In the instant case, Lloyd Martin was not a key witness in the case. Fourteen other persons testified as to the bad reputation of appellant. Further, the record fails to reflect what contact, if any, the witness may have had with the jury. This case clearly does not come within the holding of Gonzales v. Beto, supra, and Turner v. Louisiana, supra. See Crawford v. Beto, 385 F.2d 156 (5th Cir., 1967); Bowles v. Texas, 366 F.2d 734 (5th Cir., *782 1966). Art. 36.24, Vernon's Ann.C.C.P.[2], provides that a witness may not serve as a bailiff, but this Court, in Criado v. State, Tex.Cr.App., 438 S.W.2d 557, held that the failure of the sheriff to furnish the court with a bailiff who was not to be called as a witness would not ordinarily call for reversal unless harm or prejudice was shown. The record before us fails to reflect harm or prejudice to appellant. While we do not condone such practice, we hold that the court did not commit reversible error in exempting the witness-bailiff from the rule under the circumstances of this case. Appellant's grounds of error numbered 6, 8, 9, 10 and 11 are neither briefed nor discussed by appellant. Thus nothing is presented for review. Article 40.09, Sec. 9, Vernon's Ann.C.C.P.; Linzy v. State, Tex.Cr.App., 478 S.W.2d 950. Finding no reversible error, the judgment is affirmed. Opinion approved by the Court. NOTES [1] A party cannot attack the testimony of his own witness unless the witness has stated facts injurious to such party. See Article 38.28, Vernon's Ann.C.C.P.; Zanders v. State, Tex.Cr.App., 480 S.W.2d 708; Wall v. State, Tex.Cr.App., 417 S.W.2d 59. Further, surprise must be shown. The proper procedure for showing surprise is discussed in Pelton v. State, 167 Tex.Cr.R. 649, 322 S.W.2d 529. [2] Art. 36.24, V.A.C.C.P., provides: "The sheriff of the county shall furnish the court with a bailiff during the trial of any case to attend the wants of the jury and to act under the direction of the court. If the person furnished by the sheriff is to be called as a witness in the case he may not serve as bailiff."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520240/	587 S.W.2d 364 (1979) J. Tice ROLLINS and Phyllis Rollins, his wife, and Bill Payne and Mrs. Bill Payne, his wife, Plaintiffs-Respondents, v. Joe Leroy SCHWYHART, Defendant-Appellant. No. 10433. Missouri Court of Appeals, Southern District, En banc. September 18, 1979. 365 William A. Moon, Paul F. Reichert, Moon & Reichert, Springfield, for plaintiffs-respondents. Robert S. Wiley, Crane, for defendant-appellant. PREWITT, Judge. Defendant appeals from a judgment of the trial court finding in favor of plaintiffs on their petition for an injunction and against defendant's counterclaim. Plaintiffs own land in Stone County, Missouri. In order to reach their land, plaintiffs use a roadway through defendant's property. Because of plaintiffs' alleged failure to maintain the roadway, defendant fenced the right of way on both sides and placed a gate across the roadway, denying the use of it to plaintiffs. Defendant contended plaintiffs lost their easement to the road by failing to maintain it. Plaintiffs then filed a petition for an injunction requiring the defendant to remove the gate. The trial court granted the injunction. Defendant does not complain on appeal of the court's granting the injunction. He makes two points on appeal: (1) that the court erred in not rendering judgment on his counterclaim for $2,900, his fencing cost, and (2) that the trial court erred in not granting a judgment declaring that plaintiffs must share in the maintenance of the roadway. Plaintiffs' and defendant's rights and obligations arise from a document entitled "Agreement for a Right of Way", dated July 18, 1959. None of the parties to this suit were parties to that agreement. The grantors were defendant's predecessors in title and one or more of the grantees were plaintiffs' predecessors. The document 366 grants "a right of way 30 feet wide for a roadway". It then requires grantees to install and maintain two cattle guards, one at the entrance to the right of way from Highway 86, and another at the north side of the grant. Grantors reserved an equal right to use the roadway. No reference is made to maintenance of the roadway other than the cattle guards. The recited consideration paid to grantors was $166.50. Defendant's second point, that plaintiffs must share in the maintenance of the roadway, will be considered first. As the right of way agreement created the legal rights and obligations of the parties, we first look to it to determine plaintiffs' obligations. In construing this agreement we must ascertain the intention of the parties, if possible, from the language of the document. Rutledge v. Union Electric Company of Missouri, 280 S.W.2d 670, 672 (Mo.1955); Amitin v. Izard, 252 S.W.2d 635, 639 (Mo. App.1952); 28 C.J.S. Easements § 26, p. 680. When parties reduce their agreement to writing it is presumed that the instrument contained their entire contract. Conservative Federal Savings & Loan Association v. Warnecke, 324 S.W.2d 471 (Mo.App.1959). We should not enlarge or extend the agreement. Conservative Federal Savings & Loan Association v. Warnecke, supra, 324 S.W.2d at 480. The agreement does not refer to maintenance of the roadway other than the cattle guards. To find plaintiffs obligated to maintain the other portions of the roadway, we would have to determine that it is implied from the terms of the document or that they are required to maintain it because of ownership and use of the easement. To imply a provision of maintenance where none occurs would be to create an obligation which the parties may not have intended. We should not imply unexpressed conditions as it may make an agreement contrary to what was intended. 17 Am.Jur.2d, Contracts, § 255, p. 651. Courts are careful not to imply a term as to which the contract may be intentionally silent. Glass v. Mancuso, 444 S.W.2d 467, 478 (Mo.1969). We should not make a new contract for the parties or rewrite their contract by construction. 17 Am.Jur.2d, Contracts, § 242, p. 629. We must determine a deed or contract by what it says, not by what it might have said. Kerrick v. Schoenberg, 328 S.W.2d 595, 599 (Mo.1959). As the agreement is silent on the maintenance of the balance of the roadway, defendant contends that the maintenance should be shared proportionately by the ones using it. He cites cases collected in an annotation at 20 A.L.R.3d 1026. Those cases are not applicable here as no provisions for maintenance were made in the creation of the easements. The agreement here covers maintenance of a part of the right of way, the cattle guards. That maintenance is the requirement of plaintiffs and their predecessors. The agreement is silent as to any obligation of the grantees to maintain the remainder of the way. The parties provided for maintenance of part of the roadway. Where an agreement expresses one thing of a class, it implies exclusion of all not expressed. Lusk v. Lyon Metal Products, 247 S.W.2d 617 (Mo.1952); 17 Am.Jur.2d, Contracts, § 255, p. 652. This principle is to aid in ascertaining the intentions of the parties as discoverable upon the face of a document. Johnson v. Thompson, 251 S.W.2d 645, 647 (Mo.1952). It is "applicable only where clearer indications for construction are wanting". 17A C.J.S. Contracts § 312, p. 173. What conditions existed in 1959 regarding maintenance or what the parties contemplated at that time is not known. Were we to require plaintiffs to take over a share of the maintenance of all the roadway, we would be in effect writing a new clause in the agreement, which may have been contrary to the intentions of the parties. The parties may have considered that little or no maintenance was necessary for the road, as some evidence here indicated. They may have felt that the consideration was sufficient enough that grantors would maintain the road. There was evidence that little maintenance was required of the roadway, but almost constant maintenance necessary for the cattle guards. Grantors reserved an equal right to use the roadway. The grantee's obligation to maintain the cattle 367 guards may have been more burdensome than maintenance required on the remainder of the roadway. On the face of the instrument there is no obligation to maintain other than the cattle guards and we do not think additional maintenance can be required where some is provided for. The only Missouri case which counsel cite, and we have been able to find bearing on the requirement of the owner of an easement to maintain or contribute to maintenance, is Schuricht v. Hammen, 221 Mo. App. 389, 277 S.W. 944 (1925). It held that the owner of the easement was not under obligation to repair a roadway or contribute to the cost of repair by the owner of the fee. In the opinion the court assumed that the easement right to use the private road was acquired by prescription. It has also been held that the owner of the servient estate (defendant herein) is under no obligation to maintain or repair an easement roadway. Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983, 987 (1933). Defendant cites Swingler v. Robinson, 321 S.W.2d 29 (Mo.App.1959). It held that the dominant estate may be liable for failure to keep the easement in repair where the character of the easement is such that a failure to repair it may result in injury. That case has no application to the present controversy. We are determining the rights and obligations between the parties to the easement. Who, if anyone, may be liable for the failure to maintain the roadway if injury occurs, is a different question. The trial court found that since the easement agreement contained no provision or condition regarding maintenance of the roadway, plaintiffs are not required to maintain it. We believe his finding was correct and rule Point II against defendant. Point I of the defendant contends that the trial court erred in not rendering judgment for defendant on his counterclaim for $2,900. The counterclaim was for the cost of fencing allegedly required due to plaintiffs' failure to maintain the cattle guards. Defendant argues that the court's judgment against him on his counterclaim was inconsistent with the court's findings. The trial court found that plaintiffs failed to maintain a cattle guard and that the cattle guard was necessary to keep defendant's cattle in their enclosure and, because of this, defendant fenced both sides of the right of way. Defendant testified and the trial court found that defendant fenced the right of way at a cost of $2,900. The court did not find that it was necessary or reasonable to do the fencing. The trial court's findings are not inconsistent with the judgment on defendant's counterclaim. Even if the defendant fenced because of plaintiffs' failure to maintain the cattle guards, it does not necessarily follow that defendant recovers on his counterclaim. Plaintiffs were charged with failing to maintain the cattle guards. If this occurred, defendant's proper measure of damages was the cost to maintain the guards. Defendant did not maintain them but chose instead to fence the right of way. There was no finding that this was reasonable or necessary under the circumstances. Also, there is no evidence of the cost of maintaining the cattle guards. There was evidence from defendant as to what it would cost to put in cattle guards and maintain them. Defendant said that was about the same as his fencing cost. However, cattle guards were already in, until defendant removed them. There was no evidence as to what just the cost of maintenance of the cattle guards would have been. Thus, there was no evidence as to the damages for failure to maintain the cattle guards. The defendant's testimony as to the fencing and the cost of putting in and maintaining cattle guards may have been undisputed, but it was not a correct measure of damages. Had the defendant's testimony been sufficient on the element of damages, still the judge did not have to believe it even if uncontradicted. Labor Discount Center, Inc. v. State Bank & Trust Company of Wellston, 526 S.W.2d 407, 421 (Mo.App. 1975). The trial judge can believe all or a part of a witness' testimony and reject the rest. Estate of Sheets v. Sheets, 558 S.W.2d 291, 296 (Mo.App.1977). 368 Findings of fact were not requested by either party, and the court did not make a specific finding setting forth in detail why he found against defendant. All facts which are not specifically found are determined to be in accordance with the result reached. Moore v. City of Pacific, 534 S.W.2d 486, 491 (Mo.App.1976). The trial court may have found the evidence insufficient on damages. The trial judge will be affirmed if correct on any reasonable theory supported by the evidence. Roth v. Roth, 571 S.W.2d 659, 664 (Mo.App.1978). It can be reasonably concluded that the trial court could have found the evidence insufficient that it was necessary to fence. No reason was given why defendant could not have maintained the cattle guards and asked for that cost. The judge might have found for plaintiffs on the counterclaim because the damages were not proven to his satisfaction. Defendant fenced both sides of the roadway from one cattle guard to the other cattle guard with 39 inch woven mesh and two barbed wires. Before the fence was built, he had cattle, horses, hogs, and goats get out. The fence was apparently designed to hold in more than just cattle. Whether the cattle guard was so designed, we don't know. The judge found the cost of fencing at $2,900, but did not find that it was necessary, because of plaintiffs' breach of the maintenance of the cattle guards. A finding, either that such fencing was not necessary, or defendant's damages not sufficiently proven, would be reasonable and would not be inconsistent with the court's other findings. The trial court's judgment is presumptively correct, and the defendant has the burden to demonstrate that the judgment is erroneous. French v. Tri-Continental Leasing Co., 545 S.W.2d 345, 348 (Mo.App.1976). We do not believe such a showing has been demonstrated. This point is likewise ruled against defendant. The judgment is affirmed. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520241/	464 F.Supp. 461 (1978) SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. PAGE AIRWAYS, INC., et al., Defendants. Civ. A. No. 78-656. United States District Court, District of Columbia. November 18, 1978. 462 Burton Wiand, Washington, D. C., for plaintiff. Judah Best, Dickstein, Shapiro & Morin, Washington, D. C., for defendants. MEMORANDUM GASCH, District Judge. The Securities and Exchange Commission (SEC) brought this civil injunction action against Page Airways, Inc. (Page) and certain of its officers and directors for violations of the federal securities laws. The SEC alleges that the marketing practices and sales activities of Page with respect to the sale of Gulfstream II (G-II) aircraft violated the Securities Exchange Act of 1934, and the Foreign Corrupt Practices Act. Page is a worldwide dealer for G-II aircraft, manufactured by Grumman American Aviation Corporation (Grumman). The complaint names six directors and officers of Page as individual defendants. The complaint further alleges that all defendants, in order to consummate sales of aircraft and spare parts to foreign entities, made improper and illegal payments to foreign officials or to commission agents without adequate controls to insure that such disbursements were made for the purposes indicated in Page records and without adequate controls to document whether services provided were commensurate with the amounts paid. The SEC also charges that false and misleading entries to disguise these payments were made in Page's books and records, and that false and misleading statements were made in filings to the SEC. 463 Defendants have moved to transfer this action to the Western District of New York, Rochester Division, for the convenience of parties and witnesses, pursuant to 28 U.S.C. § 1404(a) (1976).[1] Defendants contend that the factual nexus with Rochester and the convenience of defendants and many witnesses require transfer. Plaintiff objects to the transfer, arguing that there are many witnesses for whom Rochester would not be convenient, and pointing to the burden and expense that would be imposed on the SEC if the case were to be transferred. For the reasons set forth below, the Court finds that the purposes of section 1404(a) would best be served by transferring this case. The standards to be considered in determining whether to grant or deny a section 1404(a) motion to transfer are generally a matter left to the discretion of the trial court.[2] Although the statute itself mentions only three considerations,[3] a court is not limited to those rather broad generalities, but may consider other factors which are subsumed by the purpose of the statute. See Chicago, Rock Island & Pacific R.R. Co. v. Igoe, 220 F.2d 299 (7th Cir. 1955). Among the factors to be considered are convenience of the witnesses of plaintiff and defendant; ease of access to sources of proof; availability of compulsory process to compel the attendance of unwilling witnesses; the amount of expense for willing witnesses; the relative congestion of the calendars of the potential transferee and transferor courts; and other practical aspects of expeditiously and conveniently conducting a trial. Id. at 304.[4] The Court has considered each of the above factors in reaching its decision in this case.[5] Defendants urge that convenience of the parties would best be served by transfer because all but one of the defendants reside in Rochester. They point out that Page's business would be substantially disrupted by having litigation proceed in an inconvenient forum. See United States v. General Motors Corp., 183 F.Supp. 858 (S.D.N.Y. 1960).[6] Moreover, the individual defendants in this action represent a large part of Page's senior management. Although substantial weight must of course be accorded plaintiff's choice of forum under section 464 1404(a),[7]see Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971), it appears to the Court that the overall burden on defendants in having to defend a suit of this type in this forum is much greater than the burden on plaintiff SEC in having to prosecute this action in the Western District of New York. Therefore, the convenience of parties in this case would be served by permitting transfer. Furthermore, additional considerations outweigh the traditional deference shown plaintiff's choice of forum. Transfer of this action would greatly enhance the convenience to potential witnesses. Out of 64 potential witnesses listed by defendants, 25 reside in the Western District of New York. Of the remainder, almost all are located at equal distances from the District of Columbia and the Western District of New York. On this basis alone it would appear that the Western District would be more convenient overall for witnesses. Most of the SEC witnesses, on the other hand, are government employees, and it may be expected that the government would be able to produce them at trial in either forum. Additionally, defendants have demonstrated that certain crucial witnesses reside in the transferee forum, where it is more convenient for them to appear, and where, for potentially unwilling witnesses over whom defendants have no control, compulsory process may be used to compel attendance. Although the testimony of such witnesses could be obtained through deposition, this Court has previously observed that "live testimony is markedly preferable to lifeless written pages in mounting a defense, particularly where, as here, the resolution of critical factual issues will likely turn on the credibility of witnesses." SEC v. Jos. Schlitz Brewing Co., No. 77-0612, slip op. at 2 (D.D.C. June 17, 1977). This lawsuit concerns the marketing practices of a corporation whose marketing headquarters are located in the transferee forum. All of Page's marketing and sales activities initiate in Rochester, where all of the company's principal sales personnel are located. The argument of the SEC that sales personnel traveled all over the world in making sales is of no avail; the suit could not be brought in Liechtenstein or Uganda, and Page's sales headquarters are in Rochester. Page's accounting books and records and its bank accounts are in Rochester, and its audits are performed there. In short, the vast bulk of the documentary evidence in this case is in Page's custody and control in Rochester. The burden on defendants of litigating in the District of Columbia given the sheer volume of documents is a factor that weighs heavily in favor of transfer.[8] In a case such as this, involving allegedly false statements and improper practices, it is desirable to go behind SEC filings and examine the underlying documentary evidence. That evidence is largely in the Western District of New York. Much has been made by counsel for plaintiff and defendants about the relative state of congestion in this Court and in Rochester. Suffice it to say that in all likelihood this case could come to trial with equal alacrity in either jurisdiction. The crowded or uncrowded state of the docket in the 465 transferee and the transferor forum weighs neither in favor of nor against transfer. It has come to the Court's attention, however, that there is currently pending in the Western District of New York an action involving some of the same issues as are involved in this case. The two cases are not identical and would not be subject to consolidation in that District, but transfer of this case would allow whatever expertise that Court might gain in one suit to be applied to the benefit of efficiency in the other. The circumstances are analogous to the transfer of a civil case to a forum in which there is an ongoing criminal proceeding; the cases cannot be consolidated, but efficiency and justice are well served by having both proceed in the same forum. See SEC v. Jos. Schlitz Brewing Co., supra. In sum, the balance of convenience in this lawsuit heavily outweighs the SEC's choice of forum. Transfer of the action to the Western District of New York serves the salutary purposes of section 1404(a) inasmuch as most defendants live there, and most witnesses would also find it convenient. Access to the proof needed to resolve the serious questions raised by this suit would be greatly facilitated by allowing the case to proceed in Rochester. After careful consideration of these factors and the others mentioned above, the Court concludes that transfer of the instant case to the Western District of New York, Rochester Division, is appropriate. Accordingly, defendants' motion to transfer will be granted. NOTES [1] Section 1404(a) provides: "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." 28 U.S.C. § 1404(a) (1976). [2] Fine v. McGuire, 139 U.S.App.D.C. 341, 433 F.2d 499 (1970); see generally C. Wright, Law of Federal Courts § 44 (3d ed. 1976). [3] The statutory considerations are: (1) convenience of the parties; (2) convenience of witnesses; and (3) the interest of justice. See note 1 supra. [4] See also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Alameda Oil Co. v. Ideal Basic Indus., Inc., 313 F.Supp. 164 (W.D.Mo.1970). [5] Section 1404(a) stipulates that a case may only be transferred to a court in which "it might have been brought." See note 1 supra. In the instant case it is clear that the SEC might have brought the action in the Western District of New York. Section 27 of the Securities Exchange Act of 1934 provides in part: Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. 15 U.S.C. § 78aa (1976). [6] The court in General Motors observed: If the trial is held in Cleveland, the Euclid executives can perform their regular duties except when actually testifying or preparing their testimony. They need not neglect their regular duties for an entire day, or lose time waiting to testify, awaiting recall to the stand, or awaiting the settlement of procedural matters among the attorneys and the court. Even on days on which such a witness testifies, he can devote noncourt and evening hours to his regular work and to conferring with his associates, subordinates, customers, and suppliers. He can accomplish this in his familiar working place, with tools, files, and help at hand. 183 F.Supp. at 861. [7] Under the doctrine of forum non conveniens, plaintiff's choice of forum was rarely disturbed. Section 1404(a), however, is more than a mere codification of forum non conveniens, and transfer may be ordered on a lesser showing of inconvenience than would justify dismissal under the prior doctrine. Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955). Furthermore, the Court of Appeals for this Circuit has recently suggested that a plaintiffs choice of forum is no longer entitled to a great deal of weight. SEC v. Savoy Indus., Inc. (1978) 190 U.S.App.D.C. 252 at 257-258, 587 F.2d 1149 at 1154-1155. [8] In Polin v. Conductron Corp., 340 F.Supp. 602 (E.D.Pa.1972), the court stated: The location of the documents and their vast bulk are important factors in deciding the transfer issue. . . . I find that the severe burden and expense which would be placed on the defendants for photocopying or making the originals available in Philadelphia for further discovery or trial is a significant factor supporting the defendants' claim for transfer to Missouri. 340 F.Supp. at 606.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520243/	464 F.Supp. 50 (1978) Morris SORIN, Plaintiff, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF WARRENSVILLE HEIGHTS et al., Defendants. No. C76-489. United States District Court, N. D. Ohio, E. D. September 7, 1978. 51 Bernard A. Berkman, Berkman, Gordon, Kancelbaum & Levy, Cleveland, Ohio, for plaintiff. James G. Gowan, Gallagher, Sharp, Fulton, Norman & Mollison, Cleveland, Ohio, for defendants. ORDER MANOS, District Judge. This is a civil rights claim brought under 42 U.S.C. § 1983. In the answers to plaintiff's complaint, various defendants have asserted counterclaims against the plaintiff. On November 24, 1976, the plaintiff filed a "Motion to Dismiss Counterclaims of the Defendants." On December 6, 1976, defendants filed "Defendants Joint Motion to Strike." This order addresses those motions. I. Motion to Strike A. Defendants argue that plaintiff's motion to dismiss counterclaims was untimely filed and must be stricken from the files because plaintiff filed a reply with affirmative defenses prior to filing plaintiff's motion to dismiss counterclaims. Defendants cite Rule 12(b) of the Federal Rules of Civil Procedure which requires that a motion to dismiss be made "before pleading if a further pleading is permitted." Defendants' motion to strike is overruled for two reasons. First, motions to dismiss following a responsive pleading are allowed when the defenses raised in the motion were included in the answer. Bailey v. Transportation-Communication Employees Union, 45 F.R.D. 444, 447 (N.D.Miss. 1968); Majerus v. Walk, 275 F.Supp. 952, 954 (D.Minn.1967). In the replies to the counterclaims, filed on July 8, 1976, the plaintiff alleged that the counterclaims failed to state claims upon which relief can be granted and that this court lacks jurisdiction over the subject matter of the counterclaims. It is on these bases that plaintiff moves for dismissal of the counterclaims. Consequently, the motion to dismiss after the filing of responsive pleading is proper. Second, a motion to dismiss may be made at any time if the motion is based 52 upon a defense of "failure to state a claim upon which relief can be granted" or lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(h); Burks v. Texas Co., 211 F.2d 443 (5th Cir. 1954); Albacten v. Corbett, 156 F.Supp. 863, 864 (S.D.Cal.1957); McLaughlin v. Curtis Publishing Co., 5 F.R.D. 87 (S.D.N.Y. 1943). B. The defendants' argument that the plaintiff's motion to dismiss should be stricken because this case should be classified as complex litigation is wholly without merit. II. Motion to Dismiss Counterclaims The defendants have filed three separate answers, each of which asserts counterclaims against the plaintiff. A. Abuse of Process Each of the answers asserts that plaintiff instituted this action groundlessly and maliciously and that plaintiff has committed the common law tort of abuse of process. Although the counterclaims are termed "abuse of process," the facts pleaded properly allege a claim for "malicious prosecution." See Avco Delta Corp. v. Walker, 22 Ohio App.2d 61, 258 N.E.2d 254 (Franklin 1969). In a malicious prosecution action, it is essential that the "person seeking recovery must allege and prove the termination of the proceedings giving rise to such an action and ordinarily must also allege and prove that such proceedings have terminated in favor of the party bringing the action for malicious prosecution." Avco Delta Corp. v. Walker, 22 Ohio App.2d 61, 63, 258 N.E.2d 254, 256 (Franklin 1969); see Rogers v. Barbera, 170 Ohio St. 241, 164 N.E.2d 162 (1960). A counterclaim for malicious prosecution, therefore, is premature and must be dismissed. See Goodyear Tire & Rubber Co. v. Marbon Corp., 32 F.Supp. 279 (D.Del.1940); see also Simkins Industries, Inc. v. Fuld & Co., 392 F.Supp. 126, 129-130 (E.D.Pa.1975). B. Invasion of Privacy Each of the answers asserts a claim alleging that plaintiff's action constitutes the common law tort of invasion of privacy. Invasion of privacy was defined in Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956) as follows: An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. The counterclaim in this case fails to allege facts constituting invasion of privacy and is therefore dismissed. See Young v. That Was the Week That Was, 423 F.2d 265 (6th Cir. 1970). C. Interference with Business, Professional and Contractual Relationships The third counterclaim, alleged in defendant Weitzman's answer, alleges that the actions of the plaintiff constitute the "common law tort of interference with business, professional and contractual relationship." This tort is described in the Restatement of Torts § 766 as follows: . . . one who, without privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby. The Weitzman counterclaim does not allege facts which would constitute this tort because it fails to allege that plaintiff induced any third person to refuse to perform any contract or terminate or decline to enter any relationship with Weitzman. See Floyd & Co. v. Cincinnati Gas & Electric Co., 96 Ohio App. 133, 146, 120 N.E.2d 596 (Hamilton 1954). It is therefore dismissed. *53 D. Defamation of Professional and Business Character Defendant Weitzman counterclaims that plaintiff's conduct constitutes the "common law tort of defamation of professional and business character." To state a cause of action for defamation, the allegedly defamatory statement must be set forth in the complaint substantially in the language uttered. Foster v. United States, 156 F.Supp. 421 (S.D.N.Y.1957); National Bowl-O-Mat Corp. v. Brunswick Corp., 264 F.Supp. 221 (D.N.J.1967); see Wright & Miller, Federal Practice & Procedure § 1245 at 218-19. The counterclaim fails to set forth the substance of the statement alleged to be defamatory. Accordingly the counterclaim is dismissed. III. Conclusion The defendants' motion to strike is denied. The plaintiff's motion to dismiss is granted as to all counterclaims. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520245/	211 N.J. Super. 253 (1986) 511 A.2d 721 REYNALDO DE LOS SANTOS, ADMINISTRATOR AD PROSEQUENDUM AND GENERAL ADMINISTRATOR OF THE ESTATE OF ARLENE DE LOS SANTOS, REYNALDO DE LOS SANTOS, INDIVIDUALLY AND RAMONA DE LOS SANTOS, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. SADDLEHILL, INC., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY; WILLIAM KOESTNER, IND. AND T/A SADDLEHILL, INC.; ANTHONY CORP. AND ANTHONY IAFELICE, IND. AND ANTHONY IAFELICE, T/A ANTHONY CORPORATION, JOHN CAPOBIANCO AND ELEVATOR MAINTENANCE, INC.; AND NEW JERSEY ELEVATOR GATE & DOOR, INC., DEFENDANTS-RESPONDENTS. Superior Court of New Jersey, Appellate Division. Argued March 5, 1986. Decided June 25, 1986. 257 Before Judges FRITZ, BRODY and BAIME. Harold J. Cassidy argued the cause for appellants (Cassidy, Despo, Foss & San Filippo, attorneys; Harold J. Cassidy and Randolph H. Wolf, on the brief). Gerald Kaplan argued the cause for respondents Saddlehill, Inc., William Koestner, Ind. and T/A Saddlehill, Inc.; Anthony Corp. and Anthony Iafelice, Ind. and Anthony Iafelice, T/A Anthony Corporation (Lieb, Berlin & Kaplan, attorneys; Gerald Kaplan, of counsel and on the brief). Stephen A. Geffner argued the cause for respondents John Capobianco and Elevator Maintenance, Inc. (Gallo, Geffner, Fenster, Farrell & Turitz, attorneys; Stephen A. Geffner, of counsel and on the brief). Brief on behalf of respondent New Jersey Elevator Gate & Door, Inc., was suppressed. The opinion of the Court was delivered by BAIME, J.A.D. Plaintiffs instituted this action to recover damages for the death of their five-year old daughter who was crushed in the elevator of the apartment building in which they resided. The 46 count complaint included wrongful death and survival actions as well as individual claims for infliction of emotional 258 distress. Named as defendants were Saddlehill, Inc., the owner of the building, and its president, William Koestner, Anthony Corp., the managing agent, and its president, Anthony Iafelice, Elevator Maintenance Inc., an independent contractor, and its president, John Copabianco, and New Jersey Elevator Gate & Door, Inc., a subcontractor. In the complaint, defendants Saddlehill, Koestner, Anthony Corp. and Iafelice were charged with failing to properly maintain the elevator in a safe condition. Plaintiffs also alleged that Elevator Maintenance and Copabianco negligently replaced the elevator door and failed to install a safety device referred to as a "toe guard" which would have prevented the elevator from moving while the door was open. Plaintiffs further claimed that New Jersey Elevator, the party that actually installed the door, was equally negligent in failing to install the toe guard. Plaintiffs sought both compensatory and punitive damages. All of the defendants filed answers and cross claims for contribution. Prior to trial, plaintiffs' claim for punitive damages was dismissed. The trial judge additionally dismissed their individual actions for negligent infliction of emotional distress. Plaintiffs settled their claims against Elevator Maintenance, Copabianco and New Jersey Elevator for $100,000 before the jury was selected. Following a protracted trial, the jury rendered its verdict. In a special interrogatory, the jury determined that Saddlehill and Koestner were not guilty of "separate and independent active negligence." However, the jury apportioned fault in the following manner: 5% for Saddlehill and Koestner, 5% for Anthony Corp. and Iafalice and 90% for Elevator Maintenance, Copabianco and New Jersey Elevator. The jury awarded $15,000 in damages in the survival action. However, the jury found no pecuniary damages in the wrongful death action. Based upon the percentages of negligence determined by the jury, the trial judge molded the verdict and entered a judgment against Saddlehill 259 and Koestner in the sum of $750 and against Anthony Corp. and Iafelice in the same amount. This appeal followed. Despite the voluminous record, the essential facts are not in dispute. The genesis of this action was a tragic accident which occurred at approximately 8:30 p.m. on July 6, 1981. Plaintiffs' decedent was crushed by an elevator in her North Bergen apartment building. Apparently, she had attempted to enter the elevator in the basement of the complex. The accident was attributable to the absence of a "toe guard," a safety device designed to prevent the elevator from moving while its doors were open. There were no witnesses to the incident, but the investigation of the police confirmed that the decedent became wedged between the outer door of the elevator and the cabin's inner gate, a space approximately eight inches wide. It would appear that someone on an upper floor summoned the elevator before the decedent could enter the inner door, and the outer gate closed behind her. She was then pulled up the elevator shaft until her head met the upper floor. In a matter of seconds, the decedent's head was crushed, and her badly battered body fell into the well of the shaft where it was discovered later that evening. Elevator Maintenance had a service contract with Koestner which had been in force since 1970. One of the duties of Elevator Maintenance was to inspect the building's elevator on a periodic basis. On August 8, 1980 Koestner received a memorandum advising him that the elevator door and frame in the basement were "beyond repair." Several months later, Koestner directed Elevator Maintenance to replace the door and perform the necessary services. A contract was signed on November 5, 1980. New Jersey Elevator, a subcontractor, installed a new outer door in early December, 1980. The old wooden door had been equipped with a toe guard. However, the subcontractor unaccountably failed to replace it. Although the superintendent of 260 the building was aware of this fact, he attached no significance to the absence of a toe guard because he was uncertain as to its function. Similarly, Iafelice inspected the elevator following installation of the new door, but he too was unaware of the need for a toe guard. A repair supervisor employed by Elevator Maintenance also inspected the door and found nothing amiss. Defendants' expert, a licensed engineer, testified that "spacer plates" his phrase for toe guards are "in common use" in the industry. He further stated that well accepted safety standards mandated installation of such a device. He concluded that the failure of Elevator Maintenance to install one on the basement floor "constitute[d] a violation" of those safety standards. Much of the evidence presented at trial pertained to the question of damages. Consistent with our Supreme Court's decision in Green v. Bittner, 85 N.J. 1, 12-17 (1980), plaintiffs were accorded broad latitude in presenting evidence concerning the pecuniary value of the loss of decedent's companionship and advice. In addition, plaintiffs presented two experts, Dr. M. Geraldine Gage, a professor of family economics at the University of Minnesota, and David Budin, an actuarial consultant, who testified that there was a likelihood of increasing "economic transfers" from child to parents with the passage of time. As noted previously, the jury apparently found all of the parties negligent but ascribed most of the fault to Elevator Maintenance and New Jersey Elevator. The jury awarded no damages in the wrongful death action. In the survival action, the jury awarded $15,000 in damages. The judge molded the verdict to reflect a reduction of the damages based upon the percentage of negligence ascribed to the settling tortfeasors, Elevator Maintenance and New Jersey Elevator. This appeal followed. Plaintiffs advance a plethora of arguments in their effort to obtain a reversal and a new trial. Although phrased in a 261 variety of ways, their complaints fall into six general categories. These include arguments that: (1) the judge's pretrial orders dismissing their claim for punitive damages and their individual actions for negligent infliction of emotional distress constituted reversible error, (2) the judge's evidentiary decisions were erroneous, (3) defense counsel's conduct deprived plaintiffs of their right to a fair trial, (4) the judge's instructions were misleading and failed to apprise the jury of the applicable principles of law, (5) the damages awarded by the jury should not have been reduced by the percentage of negligence ascribed to the settling tortfeasors and (6) the failure of the jury to award damages in the wrongful death action constituted a miscarriage of justice. Only the last two contentions require extended comment. I We first address plaintiffs' argument that Elevator Maintenance and New Jersey Elevator were not joint tortfeasors and that the trial judge incorrectly reduced the damages awarded by the jury in accordance with the percentage of negligence attributable to them. Although ambiguously phrased, the principal thrust of plaintiffs' claim is that defendants owed a nondelegable duty to maintain the elevator in a safe condition and, therefore, the negligence of the independent contractor and subcontractor must be imputed to them. They, thus, contend that the trial judge erroneously reduced the damages awarded by the jury by the percentage of negligence ascribed to Elevator Maintenance and New Jersey Elevator. We start with the thesis that an owner of a building has a nondelegable duty to exercise reasonable care for the safety of tenants and persons using the premises at his invitation. Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 555 (1962); Gill v. Krassner, 11 N.J. Super. 10, 15 (App.Div. 1950); Levine v. Bochiaro, 137 N.J.L. 215, 219 (E. & A. 1948); Hussey v. Long Dock R.R. Co., 100 N.J.L. 380, 384 (E. & A. 1924). See also 262 Prosser & Keeton, Torts, § 63 at 445-446 (5 ed. 1984); 2 Harper & James, Law of Torts, § 26.11 at 1406-1408 (1956). A landlord who leases portions of his building is obliged to exercise reasonable care in the maintenance of common facilities under his control, to the end that the premises will be reasonably safe and fit for the uses which he has invited others to make of them. Levine v. Bochiaro, supra, 137 N.J.L. at 218. That duty is nondelegable. The owner may not relieve himself of that responsibility by his unilateral act of engaging an independent contractor to discharge it for him. In other words, "the lessor's duty to exercise due care in the maintenance of a common facility remains with him whether [he] chooses to discharge [it] himself, or by his employee, or by a third party who, as to the landlord, may have the status of an independent contractor." Id. at 219. See also Mayer v. Fairlawn Jewish Center, supra, 38 N.J. at 555; Gill v. Krassner, supra, 11 N.J. Super. at 15. These principles have their genesis in our early common law and are presently codified in N.J.A.C. 5:10-4.1. That regulation, adopted pursuant to the Hotel and Multiple Dwelling Law (N.J.S.A. 55:13A-1 et seq.), states that "[o]wners, including agents ..., managing agents and superintendents shall have the general duties outlined herein" and that no "such person [shall] be relieved of any responsibility by the terms or provisions of any lease, contract or agreement." This regulation is augmented by N.J.A.C. 5:10-12.1 to 12.4 which provide detailed standards of safety pertaining to the maintenance of common elevators. As noted by our Supreme Court in Trentacost v. Brussel, 82 N.J. 214, 230 (1980), these regulations provide minimum standards for safety and habitability in multiple dwellings and have the "force of law." These principles are entirely reasonable and are based upon important policy considerations. The party to whom the lessor owes a nondelegable duty ought not to be required to concern himself with contracts made by the owner for the discharge of his responsibility. Levine v. Bochiaro, supra, 137 N.J.L. at 263 219. The lessor may secure indemnity by either agreement with the contractor or the pursuit of such remedies as the law may afford, including common law indemnification.[1]Id. at 219-220. See Mayer v. Fairlawn Jewish Center, supra, 38 N.J. at 555-556. However, the landlord cannot relieve himself of responsibility for injuries negligently inflicted upon third persons as a result of the act or omission of an independent contractor hired by him to perform his nondelegable duty. Plaintiffs are, thus, correct in their assertion that defendants were vicariously liable for the negligent acts of the settling tortfeasors. However, even if the landlord's liability were wholly vicarious and based on the jury's verdict we are convinced that it was not plaintiffs could derive no comfort from that fact. The fact remains that plaintiffs settled their claim against the independent contractor and subcontractor. While we agree that this settlement did not serve to extinguish their cause of action against defendants, Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 559 (1980); Daily v. Somberg, 28 N.J. 372, 383 (1958); McFadden v. Turner, 159 N.J. Super. 360, 366 (App.Div. 1978); Rossum v. Jones, 97 N.J. Super. 382, 390 (App.Div. 1967), it is nonetheless equally true that the settlement cannot be wholly ignored. Our cases have long recognized that a plaintiff's settlement with one tortfeasor has consequences on claims against another tortfeasor, Theobald v. Kenney's Suburban House, Inc., 48 N.J. 203, 206-209, 212 (1966); Theobald v. Angelos, 44 N.J. 228, 235 (1965), and this is true even though the latter's liability is solely vicarious. Cf. McFadden v. Turner, supra, 159 N.J. Super. at 364-365; Moss v. Jones, 93 N.J. Super. 179, 184 (App.Div. 1966). Where an individual's liability is soley vicarious, a plaintiff is entitled to only one satisfaction for the same loss and, thus, damages for which the nonsettling defendant is ultimately responsible 264 must be reduced pro tanto by the amount obtained from any settlement previously entered into between the injured party and the person who actually committed the negligent act. Cf. Restatement, Torts 2d, § 885(3) at 333, 335 (1977); Restatement, Judgments 2d, § 50 at 40-42 (1980); Prosser & Keeton, supra, § 48 at 330-332; 2 Harper & James, supra, § 10.1 at 714; Restatement, Contracts 2d, §§ 293, 294(3), 295(3) at 421, 423, 427 (1977). Hence, if the defendants' responsibility for the decedent's death were found to rest solely upon the theory of vicarious liability, they would be entitled to reduce the damages awarded by the jury against them by the amount of the settlement. Conversely, if defendants' liability were predicated on acts of independent negligence, as we believe the jury found, the Comparative Negligence Act (N.J.S.A. 2A:15-5.1 et seq.) would come into play.[2] Enactment of that statutory scheme dramatically altered prior decisional law which held that a settlement with one of several joint tortfeasors resulted in a pro rata reduction in the verdict against the remaining tortfeasors. Theobold v. Angelos, supra, 44 N.J. at 241. N.J.S.A. 2A:15-5.2 now provides: In all negligence actions in which the question of liability is in dispute, the trier of fact shall make the following as findings of fact: a. The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence, that is, the full value of the injured party's damages; 265 b. The extent, in the form of a percentage, of each parties' negligence. The percentage of negligence of each party shall be based on 100% and the total of all percentages of negligence of all the parties to a suit shall be 100%. c. The judge shall mold the judgment from the finding of fact made by the trier of fact. N.J.S.A. 2A:15-5.3 reads as follows: The party so recovering, may recover the full amount of the molded verdict from any party against whom such recovering party is not barred from recovery. Any party who is so compelled to pay more than such party's percentage share may seek contribution from the other joint tortfeasors. Presently, each tortfeasor is ultimately liable for the same percentage of the judgment as the degree of negligence attributed to him. As we pointed out in Rogers v. Spady, 147 N.J. Super. 274, 277 (App.Div. 1977), "[a] natural corollary to this is that when a claimant settles with a codefendant, that percentage of negligence found attributable [to him] ... will be deducted from the verdict returned against the other codefendants found liable, i.e., the remaining joint tortfeasors will be liable for that percentage of negligence attributable to them." See also Ramos v. Browning Ferris Ind. of So. Jersey, Inc., 194 N.J. Super. 96, 106 (App.Div. 1984), certif. granted 101 N.J. 211 (1985). Cf. Lee's Hawaiian Islanders, Inc. v. Safety First Prod., 195 N.J. Super. 493, 506 (App.Div. 1984), certif. den. 99 N.J. 205 (1984). Stated another way: Now the effect on the plaintiff of a joint tortfeasor's settlement will depend upon the percentage of fault found against him. When one defendant settles, the remaining codefendant or codefendants are chargeable with the total verdict less that attributable to the settling defendant's percentage share. [Cartel Capital Corp. v. Fireco of New Jersey, supra, 81 N.J. at 569.] It is against this backdrop that we must consider plaintiffs' argument. Unfortunately, the verdict returned by the jury is not altogether clear. As we mentioned previously, in response to a special interrogatory, the jury found that defendants were not guilty of "separate and independent active negligence separate from any negligence of [the settling tortfeasors]." However, the jury also determined that defendants were 10% negligent and the settling tortfeasors were 90% negligent. Although the verdict is ambiguous, we construe it 266 as a determination that defendants were partially at fault. Our interpretation of the jury's verdict comports with the instructions given by the trial judge. In our view, the jury found that defendants were not guilty of "separate and independent active negligence" because they did not themselves actively and affirmatively install the defective elevator door. Rather, their negligence was essentially passive in that, according to the jury, they either knew or should have been aware of the settling tortfeasors' failure to install a toe guard. The jury determined that defendants were independently negligent on that account. Since they were adjudged jointly negligent, the Comparative Negligence Act was fully applicable and the judge correctly reduced the damages in accordance with the percentage of fault ascribed to the settling tortfeasors. II We next consider plaintiffs' argument that the jury's verdict awarding no damages in the wrongful death action constituted a miscarriage of justice. Although we are mindful of our Supreme Court's admonition in Green v. Bittner, supra, 85 N.J. at 4, that such a verdict "should ordinarily be set aside ... and a new trial ordered," our thorough review of the record here convinces us that the jury's determination should be sustained. Our Supreme Court has repeatedly cautioned trial judges "to resist the natural temptation to substitute their judgment for that of the jury." Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977). The judge does not sit as a "thirteenth and decisive juror." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). A jury's verdict "is entitled to very considerable respect" and should be overturned only "upon the basis of a carefully reasoned and factually supported (and articulated) determination ... that the continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., supra, 74 N.J. at 597-598. 267 The deference accorded a jury's verdict has "roots deep in the common law." Id. at 598. As expressed by Chief Justice Hughes, "the presumption of correctness of a verdict by a jury has behind it the wisdom of centuries of common law merged into our constitutional framework." Ibid. That is not to say that a jury's verdict is sacred. When a court undertakes to review it, however, the task must "be approached, in all contingencies, with utmost circumspection...." Ibid. Here, we are fortunate to have the benefit of the trial judge's reasons for denying a new trial on damages. His views are expressed in great detail in an extensive letter opinion. In that opinion, the judge provided his evaluation of the "witness[es'] credibility," their "demeanor" and his "feel of the case" factors which may not be reflected in the printed word of the written record. See Dolson v. Anastasia, supra, 55 N.J. at 7. We emphasize that his opinion confirms what our independent and thorough review of the record discloses. The simple fact is that the evidence presented by plaintiffs with regard to damages was wholly unpersuasive. The testimony of plaintiffs' experts was highly speculative and conjectural, as they themselves admitted on cross-examination. We are fully convinced from our careful reading of the record that plaintiffs received a fair trial. We perceive no justifiable basis to disturb the jury's determination and afford plaintiffs another opportunity to litigate the issue of damages. III We have carefully reviewed plaintiffs' remaining arguments in light of the voluminous record and are convinced that they are devoid of merit. We are entirely satisfied that the judge correctly dismissed plaintiffs' claim for punitive damages and their individual actions for negligent infliction of emotional distress. In that respect, we are in complete accord with the trial judge's determination that there was no justifiable basis to warrant a punitive award. Nappe v. Anschelewitz, 268 Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984). It cannot fairly be said that defendants' conduct was sufficiently egregious to justify punitive damages. Leimgruber v. Claridge Associates, Ltd., 73 N.J. 450, 454 (1977); Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962). We are also in complete agreement with the trial judge's conclusion that plaintiffs' individual actions for negligent infliction of emotional distress did not satisfy the standards adopted by our Supreme Court in Portee v. Jaffee, 84 N.J. 88, 101 (1980). It is undisputed that a critical element "observation of the death or injury at the scene of the accident" is not present here. Ibid. Equally unpersuasive is plaintiffs' attack upon the trial judge's evidentiary decisions. We need not address all of the arguments separately. We merely repeat that plaintiffs were accorded extremely broad latitude in presenting evidence relating to their loss of the decedent's advice and companionship. The minimal restrictions placed upon the presentation of such evidence clearly fell within the trial judge's broad discretionary authority. State v. Carter, 91 N.J. 86, 106 (1982); State v. Sands, 76 N.J. 127, 144 (1978); Evid.R. 4. We also reject plaintiffs' arguments that defendants' expert was unqualified, Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141 (1950); Spiegle v. Seaman, 160 N.J. Super. 471, 478 (App.Div. 1978); Evid.R. 19, that his conclusions constituted a "net opinion," Johnson v. Salem Corp., 97 N.J. 78, 91 (1984); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Parker v. Goldstein, 78 N.J. Super. 472, 484 (App.Div. 1963), certif. den. 40 N.J. 225 (1963) and that his opinion impermissibly embraced the "ultimate issue" to be resolved by the jury. State v. Boiardo, 111 N.J. Super. 219, 238 (App.Div. 1970), certif. den. 57 N.J. 130 (1970), cert. den. 401 U.S. 948, 91 S.Ct. 931, 28 L.Ed.2d 231 (1971); Evid.R. 56(3). We next consider plaintiffs' contention that defense counsel's conduct impaired their right to a fair trial. At the outset, we note that both counsel were unnecessarily acrimonious 269 and equally at fault. The trial judge exercised admirable restraint and patience in dealing with their petty bickering. Of course, we recognize that in the pressurized atmosphere that develops in a courtroom during an extended trial, counsel may find it increasingly difficult to submit to an unfavorable ruling. Fierce argument between the attorneys often creates the motivation to add a few final words even after the judge has rendered a definitive decision. The controlling principle is clear. We emphasize that it is incumbent upon counsel to put aside their disappointment and save the point in issue for appellate review. We find it necessary to stress this rule because the record is replete with instances in which it was transgressed by both counsel. Our thorough review of the record convinces us, however, that plaintiffs were not denied a fair trial on that account. Many of the acrimonious colloquies referred to in plaintiffs' brief occurred out of the presence of the jury. In any event, we are entirely satisfied that the attorneys' often improper conduct had no impact upon the jury's determinations. We also reject plaintiffs' argument that the trial judge's instructions were misleading and failed to apprise the jury of the applicable legal principles. Contrary to plaintiffs' assertions, it was not incumbent upon the judge to instruct the jury with regard to the defendants' respective responsibilities under the elevator maintenance and repair contracts. As the judge aptly observed, the contents of the contracts had no bearing on the independent contractor's duty in tort. Elevator Maintenance and New Jersey Elevator, under well-established principles, had "a duty to persons, other than the one with whom [they had] made the contract, to carry out [the] undertaken work in a careful and prudent manner...." Aronsohn v. Mandara, 98 N.J. 92, 105 (1984). Failing that, a jury could find them "responsible to third persons for their personal injuries ... proximately caused by [their] failure to exercise that care ... irrespective of privity." Ibid. 270 We also conclude that the trial judge did not commit error in refusing to advise the jury of the effect of its comparative negligence findings upon the damages actually awarded. An "ultimate outcome" charge is generally required when a plaintiff and one or more defendants are comparatively negligent. Roman v. Mitchell, 82 N.J. 336, 345 (1980). Otherwise, the jury might erroneously conclude that the plaintiff will recover damages notwithstanding its finding that his negligence was greater than the combined fault of the defendants. In such a case, the jury "should be given an ultimate outcome charge so that its deliberations on percentages of negligence will not be had in a vacuum, or possibly based on a mistaken notion of how the statute operates." Ibid. Cf. O'Brien v. Bethlehem Steel Corp., 59 N.J. 114, 124 (1971). Here, there was no issue of the decedent's negligence. Therefore, there was no affirmative claim that would have justified the ultimate outcome charge, and we perceive no authorization or direction in Roman v. Mitchell, supra, compelling that course. See Colucci by Colucci v. Thomas Nicol Asphalt Co., 194 N.J. Super. 510, 518 (App.Div. 1984). Contra Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518, 522-523 (Law Div. 1984). Even assuming, however, that such a charge should ordinarily be given in a case involving a settling tortfeasor, it is abundantly clear that a trial judge "in the exercise of sound discretion, [can] withhold the instruction if it would tend to mislead or confuse the jury." Roman v. Mitchell, supra, 82 N.J. at 346-347. The jurors here endured a lengthy trial, and it is apparent from the record that the judge was striving to avoid unnecessary confusion. He repeatedly emphasized that it was the jury's duty to award full damages sufficient to completely recompense plaintiffs for their pecuniary loss. We discern no justifiable basis to disturb his discretionary decision under these circumstances. We further find that the judge properly refused to instruct the jury concerning the landlord's duty to provide adequate security. The evidence proffered by plaintiffs in that *271 respect was highly speculative. We discern no error in the trial judge's refusal to submit the issue to the jury. Lastly, we find that the trial judge's instructions with respect to damages in the wrongful death action fully comported with the principles enunciated in Green v. Bittner, supra. Again, we need not address each of plaintiffs' separate contentions in that respect. Suffice it to say, the judge's instructions, read in their entirety, adequately apprised the jury of the applicable principles of law. We perceive no error in that regard. IV Accordingly, the judgment of the Law Division is affirmed in all respects. NOTES [1] N.J.S.A. 2A:40A-1, which became effective following the decedent's death, limits the effectiveness of such indemnification agreements. [2] The Comparative Negligence Act is applicable where there are joint tortfeasors. Clearly, the Act does not apply where the liability of one of the defendants is solely vicarious. Although the term "joint tortfeasor" is not defined in the Comparative Negligence Act, it should be construed in light of the definition provided in the Joint Tortfeasors Contribution Law. Arcell v. Ashland Chemical Co., Inc., 152 N.J. Super. 471, 485 (Law Div. 1977). We note in that regard that the Contribution Law states generally that where a party's liability is solely vicarious, he and the actively negligent tortfeasor "shall be considered a single tortfeasor." N.J.S.A. 2A:53A-1. Cf. Public Service Elec. and Gas Co. v. Waldroup, 38 N.J. Super. 419, 431-432 (App.Div. 1955); Marley v. Palmyra, 193 N.J. Super. 271, 298 (Law Div. 1983).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520246/	464 F.Supp. 327 (1979) Michael B. STURDEVANT et al., v. Sylvia E. WILBER et al. No. 75-C-381. United States District Court, E. D. Wisconsin. January 30, 1979. 328 Menominee Legal Defense/Offense Committee by Andrew B. Reid, Phyllis R. Girouard, Keshena, Wis., for plaintiffs. Preloznik & Associates by Joseph F. Preloznik, Madison, Wis., for defendants. DECISION and ORDER MYRON L. GORDON, District Judge. The parties have filed cross motions for summary judgment. This case and my disposition of the motions pending in the case can better be understood in light of the following historical background. Between 1848 and 1961, the Menominee Indian Tribe lived on lands it had ceded to the United States by treaty. The Menominee reservation continued in existence until Congress passed the Termination Act, 25 U.S.C. §§ 891-902, which became effective in 1961. Pursuant to this Act, federal control over the Menominees was substantially terminated. All tribal property held by the United States was transferred to Menominee Enterprises, Inc., and members of the tribe were to be subject to the laws of the state of Wisconsin. The provisions of the Termination Act were short-lived. In 1974, Congress repealed the latter statute, and in the Menominee Restoration Act (MRA), 25 U.S.C. §§ 903-903f, mandated restoration of the sovereign rights and federal recognition enjoyed by the Menominee Indian Tribe prior to the Termination Act. Pursuant to the MRA, the Menominee Restoration Committee (MRC) was created. 25 U.S.C. § 903b. The purpose of the MRC was to "represent the Menominee people in the implementation of the Act." Id. In particular, the MRC was to draw up a constitution and a set of bylaws for the tribe and conduct an election to select tribal officers. 25 U.S.C. § 903c. The named plaintiffs in this case are four enrolled members of the Menominee Tribe who represent other members of the tribe as a class. The defendants are several members of the MRC, who are sued as individuals and in their official capacities. On December 1, 1978, the parties filed a set of factual stipulations which the court will treat as binding on the pending motions. The stipulations also voluntarily dismissed many of the allegations and several of the defendants named in the plaintiffs' amended complaint. Remaining for disposition are the plaintiffs' claims that the defendant members of the MRC have harmed the plaintiffs by failing to fulfill certain duties required of them by the MRA and also by taking certain actions which are 329 beyond the scope of authority bestowed on the MRC by the MRA. I. FAILURE TO PERFORM STATUTORY DUTIES The plaintiffs contend that the MRC has failed to perform certain duties which are imposed under the MRA. In particular, they contend that the defendants have failed to elect tribal officials and have failed to release tribal documents to members of the tribe. As to both of these claims, the defendants have moved for summary judgment. A. Election of Tribal Officials 25 U.S.C. § 903c provides: "(c) Within one hundred and twenty days after the tribe adopts a constitution and bylaws, the Menominee Restoration Committee shall conduct an election by secret ballot for the purpose of determining the individuals who will serve as tribal officials as provided in the tribal constitution and bylaws. For the purpose of this initial election and notwithstanding any provision in the tribal constitution and bylaws to the contrary, absentee balloting shall be permitted and all tribal members who are eighteen years of age or over shall be entitled to vote in the election. All further elections of tribal officers shall be as provided in the tribal constitution and bylaws and ordinances adopted thereunder. "(d) In any election held pursuant to this section, the vote of a majority of those actually voting shall be necessary and sufficient to effectuate the adoption of a tribal constitution and bylaws and the initial election of the tribe's governing body, so long as, in each such election, the total vote is at least 30 per centum of those entitled to vote." On November 12, 1976, the Menominee Tribe voted to adopt the tribal constitution and bylaws proposed by the MRC. One month after the adoption of the constitution, the MRC announced an election to choose tribal officials. Since that time, the MRC has conducted seven elections. Only one of those elections has met the requirements of § 903c(d) that in order for an election to be valid, thirty percent of the eligible voters must participate in the election, and each successful candidate must receive a majority of the votes cast in order to be elected. As a result, only three of the nine seats on the tribal legislature have been filled. On the basis of these facts, the defendants urge that they have fulfilled their statutory duties to conduct tribal elections and are thereby entitled to summary judgment. In response to the defendants' argument, the plaintiffs have submitted the affidavits of several tribal members who aver that the MRC has intentionally delayed the process of electing tribal officials by enacting complicated and confusing election rules and regulations and by failing adequately to publicize said elections. The plaintiffs further claim that the defendants' motive for such dilatory tactics is the perpetuation of the MRC which "shall have no power or authority under [the MRA] after the time which the duly-elected tribal governing body takes office." 25 U.S.C. § 903b(a). Pursuant to Rule 56, Federal Rules of Civil Procedure, summary judgment may be granted where there is no dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. "In summary judgment procedure the trial court should not weigh the evidence of the plaintiffs against that of the defendants. That is the function of the fact finder at trial." Staren v. American Nat. Bank & Trust Co. of Chicago, 529 F.2d 1257, 1261 (7th Cir. 1976) (emphasis in original). It is undisputed that the defendants' efforts to elect tribal officials have failed to this date. However, the cause for such failure is a matter of dispute. Thus, I am persuaded that the defendants' motion for summary judgment on the issue of election of tribal officials should be denied. B. Withholding of Tribal Documents The plaintiffs contend that during the course of its existence the MRC has 330 withheld tribal documents to which tribal members should be entitled to access. The plaintiffs admit that those documents sought in the past have been released during this case through discovery. The MRA does not contain any explicit provision requiring the release of information by the MRC. In the absence of an express statutory mandate, I do not believe that this court should enter a prospective order requiring release of documents which may not presently exist. Also, it is speculative whether the MRC will withhold such documents in the future. See O'Shea v. Littleton, 414 U.S. 488, 496-99, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Therefore, the defendants' motion for summary judgment on the issue of release of documents will be granted. II. ACTIONS BEYOND STATUTORY AUTHORITY The plaintiffs claim that the MRC has acted beyond the scope of its statutory authority by entering into contracts with parties other than the Secretaries of the Interior and of Health, Education and Welfare, and by "acting as a tribal governing body" in its administration of said contracts. As to this claim, the plaintiffs have moved for summary judgment. Before considering the substance of the plaintiffs' motion, I must first consider three arguments raised by the defendants which would preclude the court's consideration of the plaintiffs' motion. First, the defendants contend that the issue of the scope of the MRC's authority to enter into contracts was not raised by the pleadings and that therefore the plaintiffs are not entitled to summary judgment on that issue. I am not impressed by the defendants' contention. Paragraph 33(b) of the plaintiffs' complaint alleges that the defendants had taken "actions unauthorized and beyond the scope of their duties under the Menominee Restoration Act. . . ." Much of the plaintiffs' discovery in this matter required the defendants to disclose the contracts which the MRC had made during its existence. Thus, I believe that the defendants had ample notice that their authority to enter into certain contracts was an issue in this case, and they will not be unfairly prejudiced by the court's consideration of that issue. See Tankersley v. Albright, 514 F.2d 956, 964-65 (7th Cir. 1975); Sundstrand Corp. v. Standard Kollsman Industries, Inc., 488 F.2d 807, 811 (7th Cir. 1973). Second, the defendants argue that the court cannot proceed with regard to the contracts in question because parties to such contracts, other than MRC, are not joined in this action. I am not persuaded that the defendants' argument is correct. The purpose of the plaintiffs' action is not to determine the rights of the parties to the contracts in question. Rather, the plaintiffs have challenged the defendants' authority under the MRA to enter such contracts. As I stated when this issue was raised in a previous motion, "[b]ased on the plaintiffs' allegations and the relief sought, I conclude that `complete' relief, as contemplated by the framers of Rule 19(a), [Federal Rules of Civil Procedure], could be granted without the government's presence as a party to the lawsuit." Sturdevant v. Deer, 70 F.R.D. 539, 543 (E.D.Wis.1976). See also National Licorice v. National Labor Relations Board, 309 U.S. 350, 363, 60 S.Ct. 569, 84 L.Ed. 799 (1940). Third, the defendants contend that the plaintiffs lack standing to challenge the contracts in question. In order to have such standing, the plaintiffs (1) must be seeking to protect an interest arguably within the zone of interests protected by the statute in question, and (2) must allege injury in fact. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In my judgment, the plaintiffs in this action are seeking to protect an interest as provided by Congress in the MRA. In my decision and order, dated September 1, 1978, 456 F.Supp. 428, 431, I stated: "The plaintiff has clearly alleged that the defendants acted beyond the mandate of 331 the Restoration Act and have failed to perform certain duties imposed upon them by the Act. Moreover, such duties were owed to the very class which has brought this suit, members of the Menominee Indian Tribe." The plaintiffs have alleged that as a result of the defendants' entry into contracts which are not authorized by the MRA, tribal assets have been dissipated. They further allege that the defendants have administered such contracts in a vindictive and discriminatory way. Without purporting to resolve the merits of such allegations, I believe that these allegations are sufficient to meet the "injury in fact" requirement. Thus, the plaintiffs have standing to challenge the authority of the defendants to enter into the contracts in question. I now must determine the propriety of the plaintiffs' claim that the MRC has acted beyond the scope of authority vested in it by the MRA in entering into and administering contracts with parties other than the Departments of the Interior and of Health, Education and Welfare. In analyzing the plaintiffs' claim, the following provisions of the MRA are pertinent: "(e) In providing to the tribe such services to which it may be entitled upon its recognition pursuant to subsection (a) of this section, the Secretary of the Interior and the Secretary of Health, Education, and Welfare, as appropriate, are authorized from funds appropriated pursuant to the Act of November 2, 1921 (42 Stat. 208; 25 U.S.C. 13), the Act of August 5, 1954 (68 Stat. 674), as amended, or any other Act authorizing appropriations for the administration of Indian affairs, upon the request of the tribe and subject to such terms and conditions as may be mutually agreed to, to make grants and contract to make grants which will accomplish the general purposes for which the funds were appropriated. The Menominee Restoration Committee shall have full authority and capacity to be a party to receive such grants to make such contracts, and to bind the tribal governing body as the successor in interest to the Menominee Restoration Committee: Provided, however, That the Menominee Restoration Committee shall have no authority to bind the tribe for a period of more than six months after the date on which the tribal governing body takes office. 25 U.S.C. § 903a(e). . . . . . "The Menominee Restoration Committee shall represent the Menominee people in the implementation of this Act and shall have no powers other than those given to it in accordance with this Act." 25 U.S.C. § 903b(a) (emphasis added). It is undisputed that during the course of its existence the MRC has entered into numerous contracts with the Departments of the Interior and Health, Education and Welfare. Under the provisions of 25 U.S.C. § 903a(e), the MRC has the power to enter into such contracts. It is also undisputed that the MRC entered into agreements with the United States Departments of Agriculture, Justice, and Housing and Urban Development, the various departments of the state of Wisconsin, the Lake Michigan Area Agency on Aging, Inc., and various other private and public entities. In support of their contention that the MRC has the authority to enter into such agreements, the defendants rely on two arguments. First, they urge that such agreements are authorized by 25 U.S.C. § 903d(d), which provides: "The Secretary [of the Interior] and the Menominee Restoration Committee shall consult with appropriate State and local government officials to assure that the provision of necessary governmental services is not impaired as a result of the transfer of assets provided for in this section." In my view, § 903d(d) does not authorize the MRC to enter into the agreements mentioned above. The section quoted just above authorizes MRC officials to "consult" rather than contract with state and local officials. Moreover, even if § 903d(d) is construed as authorization for MRC's agreements 332 with state and local officials, it certainly cannot be construed as authorizing agreements with federal or private entities. Also, in support of their contention that the MRC is authorized to enter the agreements in question, the defendants argue that the MRA must be read broadly to ensure that services and products continue to flow to the Menominees. Although I agree with the defendants that Congress did not intend through the MRA to cut off the Menominees from necessary government services, I am also persuaded that except for those services provided by the Departments of the Interior and Health, Education, and Welfare, the MRC was not the tribal entity intended by Congress to receive or administer such services. The MRC's powers are strictly limited by the terms of the MRA. Specifically, the MRC has "no powers other than those given to it in accordance with" the MRA. 25 U.S.C. § 903b(a). Furthermore, the MRC has "no power or authority under [the MRA] after the time which the duly-elected tribal governing body takes office." Id. Finally, the MRA states that the MRC has the power to contract with or receive grants from two specifically-named federal departments, and even as to such contracts or grants, the MRC has "no authority to bind the tribe for a period of more than six months after the date on which the tribal governing body takes office." Under the terms of the MRA, the authority of the MRC is strictly limited to those powers granted by the MRA. The MRA grants the MRC the authority to contract only with the Departments of the Interior and Health, Education and Welfare. Where the provisions of a statute are "clear and unequivocal on their face," this court must follow the dictates of that statute. United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (1961). Thus, I conclude that the MRC has no authority to enter into agreements with any entities other than the Departments of the Interior and Health, Education and Welfare. Therefore, the plaintiffs' motion regarding the defendants' actions taken beyond statutory authority must be granted. As a remedy for those actions taken by the MRC beyond the scope of its statutory authorization, the plaintiffs suggest that all contracts between the MRC and entities other than the Departments of the Interior and Health, Education, and Welfare be declared invalid. They also urge that administration of said contracts be transferred from the MRC to some other unnamed group. In my judgment, the remedies proposed by the plaintiffs are unnecessarily drastic, in that they could jeopardize the flow of necessary products and services to the Menominee Indian Tribe. The plaintiffs have never contended that such products and services are in themselves harmful, only that their control and administration by the defendants is harmful. I believe that the remedy to curb abuses in such control and administration is suggested by the MRA itself. Under the terms of that Act, the MRC is to have no power after new tribal officials take office and may not bind the tribe to contracts lasting longer than six months after the date on which the new tribal government is in office. In passing these provisions, Congress apparently intended to limit the MRC's power by limiting the duration of its existence. This intention has to this date been frustrated, due to the fact that the efforts to elect a new tribal government have thus far failed. The MRC has now been in existence for nearly five years. I believe that the best way to prevent abuses in the control or administration of contracts entered into by the MRC is to ensure that a new tribal government is lawfully elected as quickly as possible, as mandated by Congress. As I stated in a previous section of this decision, there still exists a factual dispute as to the cause for the MRC's previous inability to elect a tribal government. Thus, at this juncture, I do not believe that it would be appropriate for the court to prescribe for the MRC procedures it should use in electing a tribal government. The MRC will be required, however, within 333 twenty days of the date of this decision, to serve and file a description of the steps it will take to elect the remaining members of the tribal government and the time that will be required to complete such steps. The target for the completion of the election process should be no later than June 30, 1979. The plaintiffs may serve and file a response to the defendants' proposal within fourteen days of its submission. If, following the submissions of the parties the court finds the steps taken or proposed by the defendants to be satisfactory, I do not now intend to take any further remedial action. If the defendants' proposal is not satisfactory, a further hearing and further remedial steps with regard to the election process are possible. III. CONCLUSION Therefore, IT IS ORDERED that the defendants' motion for summary judgment be and hereby is denied with regard to the plaintiffs' claim of failure to elect a tribal government and is granted with regard to the plaintiffs' claim of failure to release certain documents. IT IS ALSO ORDERED that the plaintiffs' motion for summary judgment be and hereby is granted with regard to the plaintiffs' claim that the defendants have taken actions beyond the scope of their statutory mandate. IT IS FURTHER ORDERED that within twenty days of the date of this decision and order the defendants serve and file with this court a precise description of the steps they have taken and will take to elect the remaining members of the tribal government and the time that will be required to complete such steps. The plaintiffs may serve and file with this court a response to the defendants' submission within fourteen days of service thereof. IT IS FURTHER ORDERED that those parties and allegations dismissed in the stipulation filed by the parties on December 1, 1978, be and hereby are dismissed without prejudice.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520248/	511 A.2d 995 (1986) STATE of Vermont v. Darrell DAY. No. 85-023. Supreme Court of Vermont. April 18, 1986. 996 Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Herbert W. Olson, Asst. Atty. Gen., Waterbury, for plaintiff-appellee. Martin & Paolini, Barre, for defendant-appellant. Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ. GIBSON, Justice. In November 1983, defendant pleaded nolo contendere to a charge of burglary. In exchange for defendant's plea, the prosecutor agreed to dismiss several other charges. A written plea agreement between defendant and a deputy state's attorney recommended disposition in the following terms: 2-4 years; 18 months to serve beginning [November 28, 1983]; balance suspended; probation; pro-rata restitution in [amount] to be determined by Probation Dept. ([defendant] can contest [the amount] of same); any violation of parole or probation to be concurrent; [defendant] may withdraw plea if judge exceeds recommendation or if parole authorities wish to exceed sentence. Accepting the agreement, the district court sentenced defendant to a term of two to four years, suspended, with eighteen months to be served, followed by probation. The court's order required several conditions of probation, including, among others, requirements that defendant pay a prorated amount in restitution; that he not be convicted of another offense; that he seek employment; and that he regularly report to his probation officer and cooperate with that official in several specified ways. Defendant signed a probation warrant form which listed the terms of his sentence and conditions of his probation. After defendant received his release from incarceration in January 1985, his probation officer wrote to the district court requesting the court to impose additional, more-restrictive conditions of probation. The new conditions included, inter alia, requirements that the probationer not purchase, possess, or consume alcohol or regulated drugs; that he submit to an alcosensor or urinalysis test or a photographic identification line-up whenever the probation officer directs; that he abide by a daily curfew of 9:00 p.m. to 6:00 a.m. and attend an alcohol and drug treatment seminar at his own expense; and that he not possess deadly weapons. The district court convened a hearing to determine the appropriateness of these proposed additional conditions of probation. At that hearing a probation officer admitted that he was not seeking modifications due to new information changing defendant's "risk factor." Nor did he allege violations of existing conditions of probation.[1]997 Instead, he sought new conditions because defendant fit the profile of probationers for whom an "intensive supervision" program, developed after defendant's initial sentencing, would be appropriate. Thus, he sought the modifications due to changes in his department's programing rather than due to changes in defendant's behavior. The court adopted the proposed conditions over defendant's objection that more-restrictive conditions could not be imposed without a change in his circumstances. Although defendant signed a form purporting to agree with the modifications in his probation, he did so only after the court stated: "He has a choice, either sign it or go to Rutland Correctional Center." We reverse. I. Defendant argues that the modification of his conditions of probation violates the terms of his plea agreement. The State responds with the contention that, except for the amount in restitution, the plea agreement did not address the conditions of probation, but left them to the court's discretion. The record supports the State's position. This case involves two agreements: one concerning the preconditions to a change of plea, and the other concerning the conditions of probation. Certainly, a defendant who changes his plea from not guilty to either guilty or nolo contendere after striking a plea bargain has the right to demand that the State fulfill its end of the bargain. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); State v. Earle, 145 Vt. 650, 653, 497 A.2d 28, 29 (1985). Accordingly, if the plea agreement had encompassed a set of probationary conditions, then the State could not have unilaterally sought a change of conditions later. Here, the plea agreement included just one condition of probation restitution but it contemplated there would be others. Defendant concedes that much. He argues, however, that he believed that the conditions which he contemplated were the "standard conditions of probation that appear[ed] on the probation warrant" which he signed. This argument treats two distinct agreements as one. Defendant initially agreed to change his plea in exchange for certain concessions by the prosecutor. Then, after the court accepted the plea bargain, defendant agreed to abide by a list of conditions imposed with his probationary sentence. By later seeking modification of the terms of probation, the State did not violate the terms of the original plea bargain. That bargain did not encompass an all-inclusive list of conditions; rather, it left the conditions for the court's determination. Whether modification of the conditions of probation violated the probation agreement, on the other hand, raises a second question for our consideration. II. Defendant contends that we should construe 28 V.S.A. § 253,[2] which authorizes modification of conditions of probation, to require a showing of change of circumstances amounting to good cause for permitting imposition of more-restrictive conditions of probation. The State, on the other hand, argues that such modification is simply an exercise of judicial discretion. Subsection 253(a) authorizes a district court to make modifications such as those 998 made in the present case. The statute is silent, however, as to the necessary preconditions for modification. Although subsection 253(b) requires a hearing before modification, the literal language does not specify what showing, if any, is required to impose a more-restrictive probationary sentence. The State argues in this case that a court has complete discretion, even without a change in a probationer's circumstances, to set more burdensome terms of probation whenever the court "believes that it is in the best interest of society." Such an argument ignores the contract-like nature of a probation agreement. We have said that "probation represents a choice of options. It is fundamental to probation that its format is contractual...." Sherwin v. Hogan, 136 Vt. 606, 609, 401 A.2d 895, 896 (1979). Changing the terms of probation without either the probationer's consent[3] or a change in circumstances betrays the justifiable expectation that the agreement will be honored. We are not alone in this view that a change of circumstances is necessary before more serious conditions of probation may be imposed. Construing Fla.Stat.Ann. § 948.03(2),[4] a provision comparable in content to 28 V.S.A. § 253, a Florida Court of Appeals has held that adding new conditions to a previously imposed probationary sentence is not authorized by the statute in the absence of a probationer's violation of the original conditions. Carmo v. State, 378 So.2d 850, 851 (Fla.Dist.Ct.App.1979). Likewise, although Cal.Penal Code § 1203.3 provides in pertinent part that "[t]he court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence[,]" a California Court of Appeals has reasoned that there are limits on the power of modification: Among the limitations imposed upon the court's power to modify is that such an order cannot be based on the same facts as the original order granting probation because such a modification is in excess of the court's jurisdiction for the reason that there is no factual basis to support it. People v. Miller, 256 Cal.App.2d 348, 353-54, 64 Cal.Rptr. 20, 24 (1967) (citations omitted). Also, construing Ill.Rev.Stat. ch. 38, § 1005-6-4(f), a statute similar in content to 28 V.S.A. § 253, the Supreme Court of Illinois has in dictum explained that "[t]he legislature appears to have intended that section to vest the trial courts with authority to deal with changing conditions during the probation periods." People v. Tipton, 88 Ill.2d 256, 264-65, 58 Ill.Dec. 772, 776, 430 N.E.2d 1023, 1027 (1981) (emphasis added). Both the American Law Institute and the American Bar Association's Task Force on Sentencing Alternatives and Procedures indicate that an increase in the conditions of probation requires application of the same procedural safeguards as would be imposed for revocation of probation following a violation of its terms. See Model Penal Code § 301.4 (1985); 3 Standards for Criminal Justice 18-7.3(b) and 18-7.5 (2d ed. 1980). Accordingly, we reject the State's contention in the present case that a judge has discretion to impose stricter conditions during a period of probation without any change in a probationer's behavior. We need not decide whether violation of a condition of probation is necessary before a court can impose stricter conditions. That is not at issue here. We conclude, however, 999 that at a minimum a significant change in a probationer's circumstances must be established to provide sufficient cause for imposing harsher or more-restrictive conditions on a probationary sentence. Inasmuch as no such significant change in the defendant's circumstances[5] appears on the record of this case, we hold that the district court's modification of defendant's conditions of probation was error. Reversed and remanded for reinstatement of the original conditions of probation. NOTES [1] Although the probation officer had heard reports of misbehavior by defendant while incarcerated, those reports were not the basis for seeking modified conditions of probation. Moreover, the State did not seek to substantiate the reports at the hearing. We find no basis in the record for concluding that the district court based its order of modification on behavior by defendant occurring after his initial sentence. [2] Subsections (a) and (b) of 28 V.S.A. § 253 provide: (a) During the period of probation, the court, on application of a probation officer or of the offender, or on its own motion, may modify the requirements imposed upon the offender or add further requirements authorized by section 252 of this title. (b) Whenever the court proposes any modification of the conditions of probation, the probationer shall have a reasonable opportunity to contest the modification prior to its imposition. [3] The State does not contend that defendant agreed to the modifications. Although he signed the order modifying his conditions of probation, he did so only after objecting, announcing his intent to appeal, and being threatened with incarceration if he did not sign the revised probation agreement. [4] This provision is now contained in Fla.Stat. Ann. § 948.03(4) (West 1985). [5] The State suggests that defendant's argument has become moot due to violations of probationary conditions occurring since this appeal began. Such a contention is in error since the alleged violations are of new conditions added in the order of modification here at issue.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520261/	464 F.Supp. 611 (1979) UNITED STATES of America v. Augustine A. SALVITTI. Crim. No. 78-258. United States District Court, E. D. Pennsylvania. January 22, 1979. 612 613 Peter F. Vaira, U. S. Atty., by Louis J. Ruch, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff. Robert E. Gabriel, Philadelphia, Pa., for defendant. MEMORANDUM AND ORDER CAHN, District Judge. In a four count indictment the government has charged the defendant, Augustine A. Salvitti, with violations of the Hobbs Act, 18 U.S.C. § 1951. Pursuant to a waiver by the defendant, I tried the matter without a jury. Although Fed.R.Crim.P 23(c) does not require specific findings unless a request is made, I nevertheless make the following: FINDINGS OF FACT 1. At all times material to the allegations in the indictment the defendant was Executive Director of the Redevelopment Authority of the City of Philadelphia (Redevelopment Authority). 2. In the spring of 1974 the defendant inquired of one John Hassett whether he would be interested in doing consulting civil engineering and surveying work for the Redevelopment Authority. John Hassett at that time was and continuously to the present has been employed fulltime by the City of Philadelphia as a surveyor. 3. John Hassett replied to the defendant that he would be interested. Thereafter John Hassett discussed this opportunity with his brother, Vincent Hassett, who was also employed by the City of Philadelphia as a surveyor. 4. Because the amount of work anticipated was too large for the Hassett brothers to perform, they made arrangements to associate themselves with a surveying and civil engineering firm known as Kissane-Leddy & Associates, Inc. (Kissane-Leddy). 5. Kissane-Leddy is a corporation organized under the laws of the State of New Jersey with a corporate office in that state. 6. In July of 1974 John Hassett, Vincent Hassett, William Kissane, Emil Iannelli, and the defendant met in the defendant's office. The defendant introduced John Hassett, Vincent Hassett, and William Kissane to Emil Iannelli as the engineers who would be "taking over." At that time Emil Iannelli was the Deputy Executive Director of Technical Services at the Redevelopment Authority. 7. On July 19, 1974, the defendant wrote to John Hassett advising him that Kissane-Leddy had been awarded a $140,000 contract for consulting engineering services to be performed between July 1, 1974, and June 30, 1975 (first contract). The defendant's secretary typed the letter and since the defendant possessed no other address for the firm, the letter was sent to John Hassett's home. Although work under the contract had commenced as early as July, 1974, it was not until October of 1974 that the Redevelopment Authority executed a formal contract with Kissane-Leddy. 8. As a result of the award of this contract: (a) Vincent Hassett resigned his employment with the City of Philadelphia and became an officer and fulltime employee of Kissane-Leddy. 614 (b) Kissane-Leddy opened a Philadelphia office and entered into a lease for office space at 1317 Filbert Street, Philadelphia, Pennsylvania. (c) Kissane-Leddy engaged a number of additional employees. (d) Kissane-Leddy purchased engineering equipment and office supplies from New Jersey suppliers for use in its Philadelphia office. 9. On two occasions the Redevelopment Authority amended the contract for 1974-1975 to increase the amount payable to Kissane-Leddy for consulting engineering services to a maximum of $250,000. 10. Another contract for the period July 1, 1975, to June 30, 1976, was executed by the Redevelopment Authority and Kissane-Leddy providing for a maximum compensation of $875,000 (second contract). 11. The Redevelopment Authority amended this second contract sixteen times to provide increases in the compensation payable to Kissane-Leddy to a maximum of $1,430,000 and to extend the time within which Kissane-Leddy could perform the work. 12. Notwithstanding that the contracts provided for a maximum amount of compensation, the Redevelopment Authority had no contractual obligation to order more than a nominal amount of work. 13. In late December, 1974, or early January, 1975, the defendant summoned Vincent Hassett to his office and told him that "they want $10,000 for you to keep the contract." 14. After considering the consequences of not complying with defendant's request, William Kissane, Vincent Hassett, and John Leddy decided to make installment payments to the defendant. Pursuant to that decision Vincent Hassett made cash payments to the defendant between January of 1975 and the fall of 1975 in the approximate amount of $9,000. 15. (a) The cash to make the payments was at first generated by increasing the weekly draws of Vincent Hassett, William Kissane, and John Leddy from $500 to $700. The $200 increase was set aside in cash; approximately $5,800 was raised in that manner and paid over to the defendant by Vincent Hassett at various times as the cash was accumulated. (b) After April of 1975 Vincent Hassett, John Hassett, and John Leddy generated additional cash by cashing checks received from clients (other than the Redevelopment Authority) in payment of invoices for work performed by Kissane-Leddy. In some instances Vincent Hassett or John Hassett would have the corporate client make the check payable to one or the other as an individual. In others, John Leddy would cash checks made payable to Kissane-Leddy and remit the proceeds to Vincent Hassett. No record of these transactions was kept and neither Kissane-Leddy nor the individual officers reported taxable income on the amounts thus received. 16. In the spring of 1976, the defendant, at his office, made an additional request to Vincent Hassett for five percent of the amount billed by Kissane-Leddy under the second contract. 17. Thereafter Vincent Hassett, William Kissane, and John Leddy again discussed the consequences of noncompliance and decided to make the payment to the defendant in cash. 18. Approximately $6,000 to $6,500 in cash was paid to the defendant by Vincent Hassett between the spring of 1976 and November of 1976. The funds were raised by diverting receivables due Kissane-Leddy in the manner explained in Finding 15(b) above, except that Vincent Hassett kept an incomplete record of these transactions and William Kissane also participated in the cashing of checks made payable to Kissane-Leddy. 19. In January, 1977, defendant called Vincent Hassett to his office to request another payment. 20. Shortly thereafter Vincent Hassett was hospitalized, and William Kissane delivered $1,000 in cash to the defendant in February of 1977. 615 21. Later in 1977 the defendant said to Vincent Hassett that he must come up with more money because "they think I'm pocketing it." 22. In October of 1977 Vincent Hassett made arrangements with his accountant to obtain $5,000 in cash. The accountant did so and obtained fifty $100 bills which Vincent Hassett then delivered to defendant. The accountant recorded the serial numbers of the bills delivered but there is no evidence that they were ever traced. DISCUSSION The government has established the foregoing facts beyond a reasonable doubt. I must therefore decide whether those facts constitute a violation of the Hobbs Act, 18 U.S.C. § 1951. The Hobbs Act forbids interference with interstate commerce by extortion. The offense contains two elements which the government must prove: interference with interstate commerce, and extortion, defined in the statute as: [T]he obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear, or under color of official right. 18 U.S.C. § 1951(b)(2). In this case I find that the government has proven both elements of a Hobbs Act violation beyond a reasonable doubt. First, it is clear that the acts of the defendant adversely affected interstate commerce. Kissane-Leddy is a New Jersey corporation which borrowed money from several New Jersey lenders to finance its expansion into Philadelphia and performed work in both Pennsylvania and New Jersey. Some of the officers of Kissane-Leddy are citizens of New Jersey. Kissane-Leddy is therefore engaged in interstate commerce. The payments made by the officers of Kissane-Leddy to the defendant depleted the corporation's assets. Depletion of assets of a corporation engaged in interstate commerce interferes with that commerce and is sufficient to meet the jurisdictional requirement of the Hobbs Act. United States v. Mazzei, 521 F.2d 639 (3d Cir. 1975), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975); United States v. Addonizio, 451 F.2d 49 (3d Cir.), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972). The least discernible interference with interstate commerce suffices. United States v. Craig, 573 F.2d 513 (7th Cir. 1978); United States v. Spagnolo, 546 F.2d 1117 (4th Cir. 1976), cert. denied, 433 U.S. 909, 97 S.Ct. 2974, 53 L.Ed.2d 1093 (1977); United States v. Cerilli, 418 F.Supp. 557 (W.D.Pa. 1976). I therefore find that the defendant's requests for payments interfered with interstate commerce; whatever monies the officers of Kissane-Leddy paid to the defendant could not be spent by Kissane-Leddy in the conduct of its interstate business. The facts of this case therefore fulfill the first element of a Hobbs Act offense. Second, the government has established that the defendant extorted money from the principals of Kissane-Leddy. As required by the Hobbs Act the government has proven that the defendant obtained money by putting the principals of Kissane-Leddy in fear of the consequences of not complying with his demand. Vincent Hassett, William Kissane, and John Leddy testified that not acceding to the defendant's request would have serious consequences: Kissane-Leddy would go into bankruptcy, the principals of Kissane-Leddy would go into bankruptcy, and William Kissane's father would lose his life savings of $22,000 which he had loaned to Kissane-Leddy.[1] 616 The defendant disputes the credibility of this testimony and argues that the government has not proven the element of extortion. He urges that both of the contracts with the Redevelopment Authority and the eighteen amendments thereto were approved by resolution of the Board and that there is no evidence he controlled the award of the contracts or the amendments. The defendant also points out that there were no assurances of any increases, extensions, or continuances of the contracts, and argues that the alleged fears of Vincent Hassett, William Kissane, and John Leddy were unwarranted because they never had any right to depend on the continuation of the contracts. Furthermore, the defendant contends that if there was great concern for the life savings of William Kissane's father, then Kissane-Leddy would have repaid that loan promptly instead of using corporate funds for lavish travel and entertainment as well as for substantial investments. Finally, the defendant suggests that the fear of corporate and personal bankruptcy was irrational in light of the demonstrated solvency of Kissane-Leddy. The fact of the matter is, however, that Kissane-Leddy depended on its contracts with the Redevelopment Authority to continue its profitability. Kissane-Leddy obligated itself to a landlord and an increased number of employees as a result of its contract with the Redevelopment Authority. It was not unreasonable for Kissane-Leddy's officers to fear economic repercussions if their most profitable contract were curtailed. While the fear of personal and corporate bankruptcy may have been an overreaction, it is clear that the defendant applied enough pressure to induce the officers of Kissane-Leddy to make the payments.[2] Thus, in their minds making the payments was the preferable course to follow. To prove extortion the government need not prove that the defendant actually possessed the power to carry out his threats; it needs to prove only that the victims reasonably believed that he had such power. United States v. Mazzei, 521 F.2d 639 (3d Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975). However, in this case it has succeeded in proving that the defendant actually possessed the power which the principals of Kissane-Leddy thought him to have. The evidence establishes that at the outset the defendant was able to engineer the award of a contract to Kissane-Leddy. The defendant's suggestion that the selection of Kissane-Leddy was made by others is not supported by the evidence. Emil Iannelli testified that Vincent Hassett and William Kissane were introduced to him as members of the firm that was "taking over." Neither Iannelli nor his staff made that decision. The fact that notification of the award of the initial contract was sent to John Hassett at his home address supports Mr. Iannelli's testimony. Had the staff of the Redevelopment Authority really conducted a technical review of Kissane-Leddy's qualifications, they would have secured the firm's address; John Hassett's home would not have been, in the defendant's words, "the only address we had." Moreover, the defendant testified that his secretary typed the notification letter, thereby showing that the defendant personally handled the transactions between Kissane-Leddy and the Redevelopment Authority. Had Kissane-Leddy been just another consulting firm the 617 defendant would have followed what he described as the usual procedure: the letter would have been prepared by the appropriate department and given to the defendant for his signature. Mr. Iannelli's testimony further buttressed the conclusion that the defendant exercised a great deal of control over the relationship between Kissane-Leddy and the Redevelopment Authority. Mr. Iannelli testified that when he questioned the amount of Kissane-Leddy's billings the defendant told him to cease his questioning because Kissane-Leddy was a "contributor." Clearly, the defendant had the power to steer business toward and away from Kissane-Leddy.[3] The defendant testified in his own defense. He admitted that he had received cash contributions from Vincent Hassett in exchange for tickets to political affairs as well as to banquets held for the benefit of the Kidney Foundation of Southeastern Pennsylvania. However, the defendant denied making a request for $10,000 in 1975, making a request for five percent of the billings in 1976, or making any requests for funds in 1977. Vincent Hassett and William Kissane testified that they made payments to the defendant as charged in the indictment. Therefore the court must squarely face the issue of the witnesses' credibility.[4] The credibility issue is a difficult one. Five of the government's witnesses testified under grants of immunity.[5] Their testimony revealed that they had engaged in dishonest acts toward both the Redevelopment Authority, which paid them for work never performed, and the United States government, which did not collect taxes on income received by Kissane-Leddy and its principals. The testimony of the government's witnesses is tainted by their dishonest acts; however, the defendant's testimony is tainted as well. On February 22, 1978, a jury convicted the defendant of one count of racketeering (18 U.S.C. § 1962), three counts of mail fraud (18 U.S.C. § 1341), and one count of extortionate interference with interstate commerce (18 U.S.C. § 1951). United States v. Salvitti, 451 F.Supp. 195 (E.D.Pa.1978), aff'd 588 F.2d 824 (1978). Nevertheless, I do not hesitate to find that the defendant requested and received cash payments as alleged in the indictment. The testimony of the government's witnesses was consistent and corroborated by the documentary evidence presented.[6] Although the government's witnesses were sequestered at the defendant's request, John Hassett, Vincent Hassett, and William Kissane *618 all gave the same account of the events which followed the defendant's first demand for payments. John Hassett, Vincent Hassett, William Kissane, and John Leddy corroborated each other's account of the two methods devised for generating the cash with which to pay the defendant. Their testimony remained consistent even under the exhaustive cross examination conducted by the defendant's very able counsel. These witnesses even corroborated each other's testimony on the details of their possibly illegal activities, meticulously describing the padding of bills to the Redevelopment Authority and the cashing of checks paid on accounts receivable due Kissane-Leddy. Such consistency supports the witness's testimony and undercuts the defendant's argument that Vincent Hassett is pointing to the defendant to cover up his embezzlement of Kissane-Leddy funds.[7] After observing these witnesses' demeanor and noting that the testimony of both Mr. Schneider and Mr. Iannelli corroborates the government's position I firmly believe that John Hassett, Vincent Hassett, William Kissane, and John Leddy were telling the truth. I therefore act on the collective weight of their testimony. Where applicable the foregoing discussion shall constitute additional findings of fact. I now reach the following: CONCLUSIONS OF LAW 1. This court has jurisdiction over the subject matter of this case and over the person of the defendant. 18 U.S.C. § 1951. 2. Venue is properly laid in this court. 3. The defendant induced the officers of Kissane-Leddy to give him cash to which he was not entitled in the following four instances: (a) The payment of approximately $9,000 in 1975. (b) The payment of between $6,000 and $6,500 in 1976. (c) The payment of $1,000 in February, 1977. (d) The payment of $5,000 in October, 1977. 4. By so doing the defendant affected interstate commerce. 5. The defendant extorted the four cash payments from the officers of Kissane-Leddy in violation of the Hobbs Act, 18 U.S.C. § 1951. NOTES [1] The government could have proven a violation of the Hobbs Act by this defendant even if it had failed to prove that the principals of Kissane-Leddy acted out of fear. The Hobbs Act forbids the extortion of money by the use of fear of economic harm or under color of official right. It is clear that the government must prove only one of those circumstances to prove a violation of the Hobbs Act, United States v. Mazzei, 521 F.2d 639 (3d Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975); United States v. Kenny, 462 F.2d 1205, 1229 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972). It is immaterial that, as in this case, the indictment is written in the conjunctive. United States v. Niederberger, 580 F.2d 63, 67-68 (3d Cir. 1978). Therefore, even if I would find that the principals of Kissane-Leddy were not in fear of economic harm when they made payments to the defendant, I would find that the defendant violated the Hobbs Act: he was a public official and under color of official right he induced Kissane-Leddy to give him money to which his position as a public official did not entitle him. [2] Although the government succeeded in proving that the principals of Kissane-Leddy feared personal and corporate bankruptcy if they did not accede to defendant's request, it would have succeeded in proving a Hobbs Act violation even if those fears had been less dramatic. Having the contract with the Redevelopment Authority enabled the principals of Kissane-Leddy to improve their standard of living. Curtailment of that contract would have forced them to lower their standard of living. The defendant's threat would have put them in fear of economic harm for that reason alone. [3] The defendant's argument that his disinterest in Kissane-Leddy is shown by his proposal to reduce outside consulting engineering fees through increasing in-house staff is of little effect since that recommendation was never implemented. [4] Even if all of the money which Vincent Hassett and William Kissane gave to the defendant indeed represented political and charitable contributions, the court would still have to decide whether the defendant demanded the money either under a threat of economic harm or under color of official right. If he made such a demand the defendant would be guilty as charged. If, as the defendant claims, William Kissane, offered the money to show his support for the Mayor, the defendant would not be guilty of extortion. I find the testimony of the government's witnesses credible on that issue and therefore find that the defendant demanded payments from Kissane-Leddy. William Kissane represented a New Jersey firm, worked in New Jersey, and lived in New Jersey; there is no indication that he was involved with Philadelphia politics in any way prior to the award of the first contract to Kissane-Leddy in 1974. It is undisputed that the defendant and William Kissane had never met prior to the meeting at which William Kissane, John Leddy, and Vincent Hassett were introduced to Mr. Iannelli as members of the firm that would be "taking over" some of the consulting engineering work for the Redevelopment Authority. [5] Vincent Hassett, John Hassett, William Kissane, John Leddy, and Stephen Schneider. [6] For example, the principals of Kissane-Leddy testified that to generate the cash required to satisfy the defendant's first demand for money they padded the bills which Kissane-Leddy submitted to the Redevelopment Authority and increased their weekly "draw" from $500 to $700. Twenty-nine corporate checks corroborate that testimony. Vincent Hassett's partial records for 1976 (finding number 18, page 5, supra) also support the testimony of the government's witnesses. [7] Mr. Schneider's testimony further eroded the defendant's argument. Had Vincent Hassett and the principals of Kissane-Leddy merely wanted to embezzle money from the company they would not have brought their accountant into the scheme, or tried to channel $5,000 out of the corporation all at once. The undisputed evidence shows that whatever money the principals of Kissane-Leddy used for their own purposes was diverted in small amounts. The defendant's attempts to show that Vincent Hassett had withdrawn as much as $2,000 and $3,000 from the corporation under the pretext of the repayment of loans failed when William Kissane testified that he knew that Vincent Hassett had loaned substantial sums of money to the corporation on several occasions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520264/	464 F.Supp. 1311 (1979) Moheb A. H. SADAT, Plaintiff, v. Heinz MERTES, and Hartford Accident & Indemnity Company, a foreign corporation, Defendants, v. Daniel E. GALGANITES, and Badger State Mutual Casualty Company, a domestic corporation, Defendants and Third-Party Plaintiffs, v. GENERAL CASUALTY COMPANY OF WISCONSIN, a domestic corporation and Lloyd W. Hahn, d/b/a Lloyd's Texaco, Third-Party Defendants. No. 76-C-439. United States District Court, E. D. Wisconsin. February 21, 1979. 1312 Miriam L. Eisenberg, M. L. Eisenberg & Assoc., Joseph W. Weigel, Milwaukee, Wis., for plaintiff. William P. Croke, Prosser, Wiedebach & Quale, Milwaukee, Wis., for Heinz Mertes. Kurt H. Frauen, Borgelt, Powell, Peterson & Frauen, Milwaukee, Wis., for Galganites and Badger. Stephen C. deVries, deVries, Vlasak & Schallert, S. C., Milwaukee, Wis., for General Casualty. MEMORANDUM AND ORDER WARREN, District Judge. The third-party defendants, General Casualty Company of Wisconsin and Lloyd W. Hahn, d/b/a Lloyd's Texaco, have filed a motion to dismiss this action for lack of jurisdiction. Defendants Heinz Mertes, Hartford Accident and Indemnity Company, Daniel E. Galganites and Badger State Mutual Casualty Company have joined in this motion. Plaintiff, Moheb A. H. Sadat, has filed a motion for leave to file an amended pleading to correct allegations concerning plaintiff's citizenship and domicile. Plaintiff alleges that he is a United States citizen and a citizen of the Arab Republic of Egypt, where he was born in 1934. Plaintiff became a naturalized citizen of the United States in 1973. In his deposition, plaintiff states that he lived in Beirut, Lebanon from August, 1973 to August, 1975 and that from August, 1975 to March, 1978 he lived in Cairo, Egypt. In his affidavit, plaintiff states that on June 7, 1976, his residence was Cairo, Egypt. Prior to living in Lebanon, plaintiff lived in Pittsburgh, Pennsylvania. In support of their motion, defendants and third-party defendants allege that plaintiff fails to meet the requirements for diversity jurisdiction for civil suits in the United States district courts. Section 1332(a) of 28 U.S.C. sets forth the requirements for diversity jurisdiction and provides: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between (1) citizens of different states; (2) citizens of a State and citizens of a foreign state; (3) citizens of different States and in which citizens of subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. It is well settled that, to be a citizen of a state within the meaning of the diversity provision, a natural person must be both a citizen of the United States and a domiciliary of a state. Sun Printing & Publishing Association v. Edwards, 194 U.S. 1313 377, 24 S.Ct. 696, 48 L.Ed. 1027 (1904). A United States citizen who is domiciled in a state is a citizen of that state. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914). Domicile usually requires the concurrence of physical presence in the state and the intent to make such state a home. Stifel v. Hopkins, 477 F.2d 1116 (6th Cir. 1973); Bruton v. Shank, 349 F.2d 630 (8th Cir. 1965). A United States citizen who is domiciled in a foreign country is not a "citizen of a state" and may not invoke federal diversity jurisdiction under 28 U.S.C. § 1332. Mohr v. Allen, 407 F.Supp. 483 (S.D.N.Y. 1976); Van Der Schelling v. U. S. News & World Report, Inc., 213 F.Supp. 756 (E.D. Pa.1963), aff'd per curiam, 324 F.2d 956 (3rd Cir. 1963), cert. denied, 377 U.S. 906, 84 S.Ct. 1166, 12 L.Ed.2d 177 (1964). Furthermore, jurisdiction of this Court is determined as of the date the action is commenced. Smith v. Sperling, 354 U.S. 91, 93 n.1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957). As of June 18, 1976, the date this action was commenced, plaintiff was domiciled in Cairo, Egypt. He had not been domiciled in the United States since 1973. In light of the foregoing, it is clear that plaintiff, although he was a United States citizen, was not a "citizen of a state" as required under section 1332. However, plaintiff argues that he has dual citizenship by reason of his birth in Egypt in 1934 and therefore falls within the parameters of section 1332(a)(2). The Court is unaware of any cases that have dealt with this precise issue of whether a naturalized United States citizen can meet the requirements of the diversity provision by claiming dual citizenship based upon his country of birth. After careful consideration of all factors, including the policy objectives of the diversity requirement, this Court concludes that plaintiff has failed to meet the diversity requirements of section 1332(a)(2). First of all, plaintiff is a naturalized United States citizen, who at the time he was naturalized absolutely and entirely renounced all allegiance and fidelity to any foreign state of which he had previously been a subject or citizen. By doing so, he, in effect, renounced his Egyptian citizenship. Even though the Arab Republic of Egypt may not recognize plaintiff's expatriation, such a view is not controlling on this Court as far as a determination of diversity is concerned. In addition, to allow plaintiff or any other naturalized United States citizen to also claim foreign citizenship based on country of birth would defeat the purposes of the diversity requirement and place these naturalized American citizens in a preferential position with respect to legal actions in the federal courts. Thus, this Court concludes that a naturalized United States citizen may not assert his foreign citizenship based upon birth to meet the requirements of diversity jurisdiction. The two cases cited by plaintiff are clearly distinguishable. In Aguirre v. Nagel, 270 F.Supp. 535 (E.D.Mich.1967), the minor plaintiff was a citizen of the United States and a resident of the state of Michigan, having been born and raised in that state. Plaintiff was also a Mexican citizen as both her parents were Mexican citizens. Defendant was a resident of the state of Michigan. The court held that, although plaintiff was not a citizen of a state different from that of the defendant, she met the requirements of subsection 2 of section 1332(a). The holding of the case has been questioned, see 1 Moore's Federal Practice, ¶ 0.75[1-1] p. 709.5. Unlike the plaintiff in this action, the minor plaintiff in Aguirre was a United States citizen by reason of her birth in the United States, pursuant to Congressional mandate. See 8 U.S.C. § 1401. She did not, as an adult, seek United States citizenship through the naturalization process. In Robinson v. Anastasiou, 339 F.Supp. 472 (S.D.Tex.1972), the defendant was a Greek seaman who was born in Egypt and who carried a British passport. The defendant had legally lived in Texas as a permanent resident for 10 years and held a "green card" from the United States Immigration *1314 Service. He had never applied for or received a status of naturalized United States citizen. Plaintiff was a United States citizen residing in Texas. Under these circumstances, the court concluded that defendant was a citizen of a foreign state and that it had jurisdiction under section 1332(a)(2). In light of the foregoing, this Court concludes that the requisite diversity jurisdiction under 28 U.S.C. § 1332(a) is lacking in this case. Therefore, defendants' and third-party defendants' motion to dismiss the action for lack of jurisdiction must be and is hereby granted. Plaintiff's motion to amend the complaint is hereby denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520267/	486 S.W.2d 956 (1972) Roy SALAS, Appellant, v. The STATE of Texas, Appellee. No. 45854. Court of Criminal Appeals of Texas. October 25, 1972. Rehearing Denied December 13, 1972. Sam A. Maida, Houston, for appellant. Carol S. Vance, Dist. Atty., Phyllis Bell and Robert N. Burdette, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State. OPINION ROBERTS, Judge. This is an appeal from an order revoking probation. The record reflects that on June 28, 1968, appellant was convicted for the offense of burglary with intent to commit theft, on his plea of guilty. Punishment was assessed at four years' imprisonment and appellant was placed on probation. One of the terms and conditions of probation was that he "commit no offense against the laws of this or any other State or the United States." On October 7, 1971, a motion to revoke probation was filed alleging that the appellant *957 violated this condition of his probation. A hearing was held on the motion to revoke on October 15, 1971, and the court found that appellant had violated his probation in that "on the 23rd day of June, A.D.1971, the defendant did commit the offense of burglary of a boxcar in Harris County, Texas." Appellant was sentenced to a term of not less than two nor more than four years in the Texas Department of Corrections. Appellant cites three complaints wherein he states the trial court abused its discretion. He first complains that the evidence is not sufficient to sustain a finding that he violated any condition of his probation. However, this contention is made in the absence of any reference to facts or citation of authority to support it. On June 23, 1971, appellant and other persons were observed by Houston police officers unloading packages of Hormel meat from a pickup and carrying these packages into a house. On that same day, Hormel frozen meat had been taken, without permission, from a boxcar in Harris County, Texas. The evidence is sufficient to sustain the court's finding. Appellant, being found in unexplained possession of property identified as being recently stolen gives rise to a presumption of the taking. Johnson v. State, 476 S.W.2d 324 (Tex.Cr.App.1972); 5 Branch 2d 96, § 2650. Appellant next complains of certain statements by appellant which were overheard by police officers immediately prior to appellant's arrest. The record reflects that the police officers, after observing appellant and other persons carrying the packages into a house, followed the persons into the house without making their presence known. One of the officers testified that, from a screen porch, he overheard appellant and the other persons "discussing quality and price of some meat." At that point in the hearing, the defense counsel objected to such testimony, alleging that appellant was under arrest at the time such statements were made. Apparently, defense counsel attempted to exclude the statement on the theory that it was obtained as a result of an illegal custodial interrogation. However, on appeal, we now discover that appellant urges us to find the admission of the statement to be reversible error, in that it was obtained as the result of an illegal search, in violation of appellant's Fourth Amendment rights. No such objection was made at the trial. Since complaint raised by appellant in his brief on appeal was not raised in the trial court, and no opportunity was presented for the trial court to rule thereon, no question is presented for review. Valdez v. State, 472 S.W.2d 754 (Tex.Cr.App.1971); Hinkle v. State, 442 S.W.2d 728 (Tex.Cr.App.1969); Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267 (1957). In his last complaint, appellant contends the court erred "in overruling the defendant's objection to any testimony about a picture with the defendant being present in that picture." One of the police officers testified that a photograph was observed on the dash of the pickup truck from which the meat was unloaded, the appellant being one of the persons in the picture. Such testimony was obviously intended to further implicate appellant as an active participant in the commission of the crime. Although appellant's brief states the court "erred in overruling the defendant's objection to any testimony" about the picture, we note that when the officer first testified concerning the picture, no objection by defense counsel was made. Only after extensive testimony by the officer was any objection made to the testimony relating to the photograph, and that objection was made on re-cross of the officer. Therefore, the objection came too late to preserve error, if any. Crestfield v. State, 471 S.W.2d 50 (Tex.Cr.App.1971) cert. denied, 406 U.S. 917, 92 S.Ct. 1764, 32 L.Ed. 2d 115 (1972); Webb v. State, 480 S.W.2d 398 (Tex.Cr.App.1972); Sierra v. State, 482 S.W.2d 259 (Tex.Cr.App.1972). We find no abuse of discretion. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520402/	486 S.W.2d 604 (1972) Fred ARRINGTON, Appellant, v. Curtis LOVELESS, Appellee. No. 17345. Court of Civil Appeals of Texas, Fort Worth. October 27, 1972. 605 Robert H. Caldwell, Jr., Denton, for appellant. R. William Wood, Denton, for appellee. OPINION BREWSTER, Justice. This is a suit to recover rentals allegedly due to the landowner from the tenant under a written lease agreement. The landowner, Curtis Loveless, was awarded a judgment in the trial court for unpaid rentals and the tenant, Fred Arrington, has appealed. The trial was non-jury and no findings of fact and conclusions of law were filed by the trial court. The defense alleged by defendant to plaintiff's suit was: that the parties had mutually agreed to a surrender of the lease as of August 31, 1971, or, in the alternative, that the facts in the case are such as to have resulted in a surrender of the lease by operation of law as of that date, which date was prior to the time the rentals sued for accrued. The defendant urges five points of error on this appeal. The first such point is in substance to the effect that because of plaintiff's omission to introduce into evidence the lease contract involved that this left the record without any competent evidence to support any presumed findings by the court of an obligation on the part of the defendant to pay rent after he gave up possession of the premises. We overrule that point because admissions contained in defendant's answer did away with the need for plaintiff to prove up the terms of the lease. In view of such admissions the execution of the lease and its terms were as fully established as they could ever have been by proof offered by plaintiff. Plaintiff's pleading, Paragraph II alleged the following: "That on or about November 18, 1970, Plaintiff and Defendant entered into a written agreement of lease whereby Plaintiff agreed to lease to Defendant a brick store building located at 1220 West Hickory, Denton, Texas. Said agreement of lease is attached hereto and 606 marked `Exhibit "A"' and is for all purposes intended to be incorporated herein." Paragraph III of said pleading alleged in substance that under the terms of the lease defendant agreed to pay plaintiff $4800.00 in rentals at the rate of $200.00 per month on the first day of each month starting December 1, 1970. The lease was actually marked "Exhibit `A'" and attached to plaintiff's petition, which was filed as a pleading in the case. Defendant's amended answer, Paragraph No. I, alleges: "Defendant admits the allegations contained in Paragraphs II and III of Plaintiff's Original Petition." During the trial the lease was not marked as an exhibit and was not introduced into evidence. In view of the admissions above referred to that are contained in defendant's answer it was unnecessary upon the trial to offer proof as to the execution of or as to the terms of the lease. On this point see 45 Tex.Jur.2d 526, Pleadings, Sec. 86, wherein it is said: "... a party need not allege or prove facts that are pleaded and admitted by his adversary...." See also Manning v. Barnard, 277 S.W.2d 160 (Dallas, Tex. Civ.App., 1955, ref., n. r. e.). It was not even necessary in order to get the benefit of those admissions to introduce defendant's pleading into evidence. On this see 45 Tex.Jur.2d 526, Pleading, Sec. 86, for the following: "Since the office of pleadings is to define the issues to be tried, and since pleadings are matter of record as distinguished from matter of evidence, an adversary's pleadings are not required to be introduced in evidence in order to obtain the benefit of any admissions therein." Defendant contends in his points of error Nos. 2 through 5, inclusive, that the undisputed evidence in the case shows: (1) that the lease was surrendered by operation of law; (2) that the parties mutually agreed to a surrender of the lease, and (3) that plaintiff is estopped from suing to collect the rentals that are here involved. We overrule all of those points. A surrender of a lease, as that term is used in the law of landlord and tenant, is the yielding up by the tenant of the leasehold estate to the landlord so that the leasehold estate comes to an end by the mutual agreement of the landlord and tenant. 51C C.J.S. Landlord and Tenant § 120, p. 388; and 36 Tex.Jur.2d 113, Landlord and Tenant, Sec. 260. For a surrender to occur the lessor and lessee must have a meeting of the minds and must mutually agree that there be a surrender of the lease. 36 Tex.Jur.2d 113, Landlord and Tenant, Sec. 260; Stewart v. Basey, 241 S.W.2d 353 (Austin, Tex.Civ.App., 1951, affirmed in 150 Tex. 666, 245 S.W.2d 484 (1952)); and Barret v. Heartfield, 140 S. W.2d 942 (Beaumont, Tex.Civ.App., 1940, error ref.). Proof that the parties had mutually agreed to a surrender of the lease would be a defense to a suit to recover rentals that allegedly accrued after the surrender occurred. Patteson v. McGee, 350 S.W.2d 241 (Eastland, Tex.Civ.App., 1961, no writ hist.). The law is that in a case such as this the burden of both pleading and of proving by a preponderance of the evidence that a surrender of the lease did occur is upon the lessee who is trying to avoid paying the rentals which he agreed in the lease to pay. Smith v. Irwin, 289 S.W. 113 (El Paso, Tex.Civ.App., 1926, no writ hist.); and Stewart v. Kuskin & Rotberg, 106 S.W.2d 1074 (Texarkana, Tex. Civ.App., 1937, no writ hist.). In Stewart v. Basey, 241 S.W.2d 353 (Austin, Tex.Civ.App., 1951, affirmed in 150 Tex. 666, 245 S.W.2d 484 (1952)), the court said at page 358 the following: "In order for there to be a termination of a lease contract or a surrender thereof, 607 it must be by the mutual agreement of the lessor and the lessee,that is there must be a meeting of the minds. Barret v. Heartfield, supra; Early v. Isaacson, Tex. Civ.App., 31 S.W.2d 515, Er.Ref.; 27 Tex.Jur., p. 312, Sec. 183. Upon conflicting evidence this was an issue for the trier of the facts. Barret v. Heartfield, supra; Marathon Oil Co. v. Rone, supra, [Tex. Civ.App., 83 S.W.2d 1028]; Cannon v. Freyermuth, Tex.Civ.App., 4 S.W.2d 84, with the burden on appellee to introduce evidence showing appellants accepted the surrender of the premises with the intention to release appellee from further liability under the contract. Walton v. Steffens, Tex.Civ.App., 170 S.W.2d 534, Er. Ref.W.M.; Drollinger v. Holliday, Tex. Civ.App., 117 S.W.2d 562; Miller v. Compton, Tex.Civ.App., 185 S.W.2d 754." Many other cases hold that whether there has in fact been such an acceptance by the lessor of a surrender of the leasehold by the tenant as to release the tenant from further obligations to pay rent under the lease involves a determination of the intention of the parties. Patteson v. McGee, supra; Walton v. Steffens, 170 S.W. 2d 534 (El Paso, Tex.Civ.App., 1942, ref., want of merit); Early v. Isaacson, 31 S. W.2d 515 (Amarillo, Tex.Civ.App., 1930, writ ref.); article entitled "The Element of Intent in Surrender by Operation of Law", 38 Harvard Law Review 64; and 51C C.J.S. Landlord and Tenant § 124, footnotes 75 through 78, p. 394. The question of what the parties intended is of prime importance in determining what they agreed to and in determining whether they mutually agreed that there be a surrender of the lease. The cases herein above cited are authority for this statement. There is no contention here that there was an express agreement of the parties to effect a surrender of the lease. If the evidence on the issue of surrender did no more than create a fact issue, then we are required to affirm the judgment because, since there are no findings of fact or conclusions of law, we must presume that the trial court found the issue of surrender against defendant and in favor of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950), and for many other cases so holding see Note 26 under Rule 296, Vernon's Texas Rules of Civil Procedure. The plaintiff and the defendant were the only witnesses that testified. The substance of the evidence in the case and the admissions in the pleadings showed the following: By written lease the plaintiff leased to defendant the premises involved for a two year term beginning December 1, 1970, and ending November 30, 1972, for a total rental of $4800.00 which was to be payable $200.00 on December 1, 1970 and $200.00 on the first day of each succeeding month during the term of the lease; in June, 1971, plaintiff was advised by his mother that she had heard that defendant was going to move from the premises; plaintiff then went by to talk to defendant about it and was advised that defendant had bought from the City of Denton an old firehall and that he did plan to remodel it and move his cleaning and pressing business into it but did not know just when he would do so, but that it would likely be within the next two months; plaintiff told defendant that the leased building, being around a college, was easier to rent in the summer months so the tenant could have a full year to sell to college students and that if he was going to have to look for a new tenant that he would like to start looking before the school year started around the end of August, for otherwise the building could be vacant for a long time and the defendant would be liable for the rent; the lease provided that the tenant could not assign or sublet the premises without the written consent of the landlord; plaintiff and defendant both agreed that they would start looking for some one to occupy the building and that both would put up a "for 608 rent" sign; when some one would inquire about the building of defendant he would send them to the plaintiff to talk; they both knew one George Sharpe and defendant asked plaintiff if he would agree to rent the place to Sharpe and plaintiff agreed to do so; defendant then sent Sharpe to see plaintiff who entered into a written lease of the property with Sharpe for one year at $200.00 per month; the lease was in writing, but was not offered into evidence; this lease that plaintiff signed with Sharpe was dated August 15, 1971, but was not to start until September 1, 1971; defendant consented to let Sharpe into the building, gave him a key, and in the middle of August Sharpe started remodeling the building and defendant proceeded to and did move his things from the building; Sharpe never did open for business and did not pay any rent whatever and on September 22, 1971, the plaintiff repossessed the premises from him and started trying to re-rent it but could not do so for three months; he then called on defendant to pay these rentals for those three months and defendant refused to do so; the plaintiff testified that at no time did he ever intend to release defendant from his obligation to pay the rental provided for in the lease; at one time the plaintiff and defendant were discussing the leasing of these premises to Mr. Sharpe and when defendant asked plaintiff if he would lease the place to Sharpe, the plaintiff told defendant that he would lease it to Sharpe and that if Sharpe would begin to pay rent that plaintiff would give defendant credit for the rentals that Sharpe paid, because he did not want to collect double rent for any time. The evidence showed that all of defendant's rents due under the lease were paid by defendant on time up through the end of August, 1971, and that he had not defaulted in the rentals or otherwise at the time plaintiff signed the lease with Sharpe on August 15, 1971. The following is from 51C C.J.S. Landlord and Tenant § 124, p. 394: "... it has frequently been said and held that whether there has been a surrender by operation of law is a question of intention of the parties, to be deduced from their words and acts, and that a surrender by operation of law will not be implied against the intent of the parties as manifested by their acts ...." The following is from "The Element of Intent in Surrender by Operation of Law", 38 Harvard Law Review 64, at page 81 (Note 56): "Regarding the act of the landlord in putting a second tenant in possession as evidence of his intention to accept surrender of the prior lease, we find it overcome by the more specific evidence in the form of the landlord's statement that his act is not intended to signify consent to any surrender in the sense of ending the obligation to pay rent, but is done rather with the idea of reducing the damages consequent on the non-payment of rent by the lessee. If the intent thus proved is permitted to control, the landlord will be encouraged rather than discouraged in efforts to curtail his loss ...." We hold that the evidence in the case did not establish the issue of surrender as a matter of law in favor of the defendant, and that it created a fact issue on that point for the trial judge's determination. The following are additional authorities which support our holding: Peticolas v. Thomas, 9 Tex.Civ.App. 442, 29 S.W. 166 (1895, no writ hist.); and Brown v. Linn Woolen Co., 114 Me. 266, 95 A. 1037 (1915). The trial court's judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520403/	211 N.J. Super. 376 (1986) 511 A.2d 1227 KEARNEY & TRECKER CORPORATION, PLAINTIFF-APPELLANT, v. MASTER ENGRAVING CO., INC., DEFENDANT-RESPONDENT. Superior Court of New Jersey, Appellate Division. Submitted June 3, 1986. Decided June 27, 1986. 378 Before Judges PRESSLER, DREIER and GRUCCIO. Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, attorneys for appellant (Stephen N. Dermer and Malcolm D. Young, pro hac vice, of the State of Nebraska, on the brief). Cohn & Lifland, attorneys for respondent (James M. Docherty, on the brief). The opinion of the court was delivered by DREIER, J.A.D. This is an appeal by plaintiff, Kearney & Trecker Corporation (Kearney), the manufacturer and seller of the Milwaukee-Matic 180 tooling machine (MM180). Kearney sold the MM180 to defendant, Master Engraving Inc. Company (Master), for approximately $167,000. The seller contests a jury verdict on Master's counterclaim finding Kearney in breach of contract and awarding $57,000 damages to which the court added $14,873.78 in prejudgment interest. Kearney defended on the basis 379 of contractual provisions limiting the buyer's remedy to repair or replacement of the machine and excluding consequential damages. Since we find these limitations mutually dependent and the limited remedy of repair or replacement failed of its essential purpose, we do not disturb the award.[1] At issue is the reconciliation of two "boilerplate" provisions limiting remedies and damages set forth both in a written proposal and in an acceptance form. The provisions appeared after the seller's express warranty that the machine will: ... be free from defects in material and workmanship for the shorter of (i) twelve (12) months from date of delivery ... or (ii) four thousand (4,000) operating hours, and a disclaimer that the "WARRANTY EXPRESSED HEREIN IS IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED." The brochure describing the machine contained additional representations, discussed infra. One of the provisions under review limits the buyer's remedy to "REPAIR OR REPLACEMENT OF THE DEFECTIVE PART OR PRODUCT, OR AT SELLER'S OPTION, RETURN OF THE PRODUCT." The other states "UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY OTHER LOSS, DAMAGE OR EXPENSE OF ANY KIND, INCLUDING LOSS OF PROFITS." After hearing testimony of Master's revenue loss occasioned by the repeated malfunctioning of the machine beginning on the date of its initial use and of Kearney's unsuccessful attempts to repair the machine, the jury returned a verdict sheet containing what at first appear to be inconsistent answers. It found that Kearney was in breach of contract but that Kearney did not sell a defectively designed or manufactured product. We read this 380 response, in light of the charge given,[2] to mean that the jury believed that the limited remedy failed of its essential purpose. N.J.S.A. 12A:2-719(2). Under appropriate circumstances the designation of a sole remedy, N.J.S.A. 12A:2-791(1)(b), or the exclusion of consequential damages, N.J.S.A. 12A:2-791(3), will be enforced. Gladden v. Cadillac Motor Car Division, General Motors Corp., 83 N.J. 320, 330 (1980); Monsanto Company v. Alden Leeds, Inc., 130 N.J. Super. 245, 260 (Law Div. 1974). But "[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided (under the U.C.C.)." N.J.S.A. 12A:2-719(2). Cf. Ventura v. Ford Motor Corp., 180 N.J. Super. 45, 65-66 (App.Div. 1981), providing for a "rescission-type remedy" where revocation of acceptance was justified. Plaintiff relies upon Chatlos Systems v. National Cash Register Corp., 635 F.2d 1081, 1086 (3d Cir.1980) for the proposition that a judicial rejection of the limitations of remedy has no effect upon the clause limiting consequential damages. That 381 court, after determining that a limited remedy had failed, stated that "the better reasoned approach is to treat the consequential damage disclaimer as an independent provision, valid unless unconscionable." A contract, however, must be read as a whole to give effect to the parties' mutual intention. Gladden v. Cadillac Motor Car Division, General Motors Corp., supra, 83 N.J. at 333; Monsanto Company v. Alden Leeds, Inc., supra, 130 N.J. Super. at 260. Here the failure adequately to repair the machine rendered ineffective the exclusion of consequential damages. The allocation of risk through exclusion of consequential damages was inextricably tied to the limitation of remedies. Master may have agreed to bear the consequential loss stemming from the short periods that it would have expected the MM180 to be inoperable while being repaired or replaced; but any loss occasioned by the complete failure of that remedy was not contemplated by the exclusion of damages provision. The type of loss suffered here was outside the scope of the parties' agreement. Moreover, although the trial judge appropriately found that the parties had substantial experience with the sale and purchase of similar tooling machines, an interpretation of the remedy and damage limitations to include such a substantial failure of performance would not reflect negotiated aspects of the bargain. According to the testimony of Kenneth Raindorf, Master's president, he purchased the machine in reliance on representations by Bill Gillmore, Kearney's salesman, that the machine would require little maintenance. The brochure mailed by Gillmore to Raindorf stated that the machine: [c]ombines simplicity with efficiency. It was designed using fewer parts. It is this simplicity of design that does much to explain the MM180's amazing low maintenance requirements. Parol evidence of this bargaining process was properly before the judge and jury below, notwithstanding the form language in the two documents. See Computerized Radiological Services v. Syntex Corp., 595 F. Supp. 1495, 1507 (E.D.N.Y. 1984). 382 This is particularly so where the express representations were claimed to be inconsistent with the limited 12-month or 4,000 operating hours warranty. Gladden v. Cadillac Motor Car Division, General Motors Corp., supra, 83 N.J. at 332. Thus it was proper for the trial court to have admitted evidence of the express representations concerning the product. Here, as in Gladden, however, we need not reach the issue of unconscionability of the limitation, since as noted earlier we have determined the case on the failure of the stated remedy to effect its purpose. N.J.S.A. 12A:2-719(2). Kearney also challenges the trial court's inclusion in the final judgment of $14,873.28 prejudgment interest. Pre-judgment interest, which generally will not be allowed on unliquidated claims, Jardin Estates, Inc. v. Donna Brook Corp., 42 N.J. Super. 332, 341 (App.Div. 1956), may be awarded upon the application of equitable principles. Cf. Manning Engineering, Inc. v. Hudson Cty. Park Comm'n., 71 N.J. 145, 159 (1976), vacated on other grounds, 74 N.J. 113 (1977); Bak-A-Lum Corp. v. Alcoa Building Prod., 69 N.J. 123, 131 (1976). As explained in Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 506 (1974), one purpose of prejudgment interest is to compensate a party for the benefit of a sum of money to which it has been entitled, but that has been retained by another. Here when Master paid for the MM180 it was entitled to an operable machine. Yet for the time that Master had to do without the use of the machine, Kearney retained the benefit of the sales price. The trial judge recognized this inequity by awarding prejudgment interest. He stated that ... in applying equitable principles ... we should assume that the jury's calculations were based on the repair bills plus ... the amount of damages they thought were fair and reasonable that the defendant lost. This reasoning and the ensuing award were far from a "manifest denial of justice;" thus this court "will defer to the trial court's exercise of discretion involving prejudgment interest." 383 A.J. Tenwood Associates v. Orange Senior Citizens Housing Co., 200 N.J. Super. 515, 525 (App.Div. 1985). Affirmed. NOTES [1] The denial of Kearney's claim against Master for amounts allegedly due under their service agreement is not the subject of this appeal. [2] The charge stated in part: You may find that there was an agreement between the parties to limit the remedy in the event that the machine was not as described in the plaintiff's warranties. You may also find that the plaintiff's contract contained a provision which limited the plaintiff's responsibilities in the event the machine was not as warranted to the repair or replacement of defective parts and that that limitation was limiting his liability to the repair or replacement of defective parts. However, if you find that the plaintiff's actions in repairing and replacing the defective parts did not make the machine as warranted, that is, free from the defects in material and workmanship, then you may find that the defendant is entitled to all of its consequential economic losses and damages despite the language of the contract. A manufacturer and buyer may agree that only certain warranties shall apply and all others be excluded. Any implied warranty may be excluded if at the time of the sale the manufacturer-seller specifically makes known to the buyer that such warranties are excluded. Any warranties of the machine center involved in this case was [sic] based upon the assumption that it would be used in a reasonable manner appropriate to the purpose for which it was intended.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520109/	385 A.2d 206 (1978) Raymond F. GAGNER and Beatrice C. Gagner v. KITTERY WATER DISTRICT et al. Supreme Judicial Court of Maine. May 3, 1978. Waterhouse, Carroll & Cyr by Robert N. Cyr (orally), Biddeford, for plaintiffs. Patrick L. J. Veilleux, Kittery (orally), Gaulin & Kimmel by Edward F. Gaulin, Biddeford, for defendants. Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ. McKUSICK, Chief Justice. The Kittery Water District (District), a defendant in the action below, appeals from the York County Superior Court's ruling that it has no valid easement as against the plaintiffs for maintenance of a water main claimed by the District. We sustain the appeal. In 1969 Warren's Realty, Inc. (Realty) conveyed to the plaintiffs, Raymond and Beatrice Gagner, by warranty deed, certain realty abutting Route 1 in Kittery, Maine. The Gagners commenced the present action against their seller in 1971 for breach of covenant of warranty against encumbrances, having discovered shortly after 207 taking the deed that a water main, owned by the District and serving the Portsmouth Naval Shipyard, traversed the property. Realty then brought a third-party complaint against the plaintiffs' attorney, who, in addition to having represented both the Gagners and Realty in the land transfer, had also searched the title for the plaintiffs and certified it to be free and clear of all encumbrances.[1] The plaintiffs later amended their complaint to join the District as an additional party defendant. With the case thus postured, the Superior Court issued a pre-trial order severing for hearing the issue of the validity of the District's easement. After a hearing limited to that issue, the Superior Court ruled that "there is no valid easement as against plaintiffs in this case for the maintenance of the water main claimed by the Kittery Water District." The District appealed the final judgment entered against it below.[2] The validity of the District's unrecorded water pipe easement as against the Gagners depends upon our applying to the facts of this case the governing Maine recording statute, 33 M.R.S.A. § 201 (1964), providing in pertinent part that "[n]o conveyance of an estate in fee simple, fee tail or for life, or lease for more than 2 years or for an indefinite term is effectual against any person except the grantor, his heirs and devisees, and persons having actual notice thereof unless the deed or lease is acknowledged and recorded in the registry of deeds within the county where the land lies . .." (Emphasis added). This court has in the past had occasion to define the term "actual notice" as used in the recording act. "Actual notice and actual knowledge are not necessarily synonymous expressions. Actual notice is that which gives actual knowledge, or the means to such knowledge. It is a warning brought directly home to one whom it concerns to know. Actual notice may be either express or implied. It is express when established by direct proof. It is implied when inferable as a fact by proof of circumstances. `Express actual notice' is, perhaps, its own best definition. Implied actual notice is that which one who is put on a trail is in duty bound to seek to know, even though the track or scent lead to knowledge of unpleasant and unwelcome facts." Hopkins v. McCarthy, 121 Me. 27, 29, 115 A. 513, 515 (1921). Elaborating more particularly on the concept of "implied actual notice," we earlier said in Knapp v. Bailey, 79 Me. 195, 204, 9 A. 122, 124 (1887), that: "The doctrine of actual notice implied by circumstances (actual notice in the second degree) necessarily involves the rule that a purchaser before buying, should clear up the doubts which apparently hang upon the title, by making due inquiry and investigation. If a party has knowledge of such facts as would lead a fair and prudent man, using ordinary caution, to make further inquiries, and he avoids the inquiry, he is chargeable with notice of the facts which by ordinary diligence he would have ascertained. He has no right to shut his eyes against the 208 light before him. He does a wrong not to heed the `signs and signals' seen by him. It may be well concluded that he is avoiding notice of that which he in reality believes or knows. Actual notice of facts which, to the mind of a prudent man, indicate notice is proof of notice." The Superior Court found in the present case that the plaintiffs had no notice, actual or implied, of the existence of the Kittery Water District's water line crossing their property. To the contrary, we conclude that in the circumstances of this case the plaintiffs, through their attorney and title searcher, were put on inquiry notice of the District's easement, but the inquiries made by them did not, as a matter of law, constitute the due diligence required to prevent the enforcement of the District's unrecorded easement against them.[3] While examining the chain of title to the property at the York County Registry of Deeds in 1969, the Gagners' attorney noticed language in several earlier deeds, first appearing in 1922, stating that the conveyance was made "subject to the rights of the Kittery Water District to maintain a line of water pipes across said premises, as set forth in [a release from Joseph H. Blaisdell] to said Water District." The attorney searched the Registry records for the above-mentioned release, but, as it was then yet unrecorded, he found no such instrument. From the face of the deeds, the attorney also learned that the property which the Gagners desired to purchase had once formed part of a single larger parcel. In 1943 Warren Wurm and his wife had purchased that parcel "subject to" the rights of the District. In 1953 and 1958, the Wurms by two separate conveyances transferred title to the entire parcel to Realty, the Wurms' corporation. Only that part of the land conveyed by the 1953 deed was, however, conveyed "subject to" the rights of the District. Realty later conveyed that first parcel to a third party by a deed containing no reference to any rights of the Kittery Water District. The parcel that the Gagners purchased was identical to that which the Wurms had conveyed to Realty in 1958 without any "subject to" language. At the hearing the Gagners' attorney acknowledged that what he actually saw in the deeds[4] put him on inquiry as to the existence of the District's water line. Thus alerted, he contacted Warren Wurm representing Realty, the seller, and asked him whether the District owned any rights in the property. Wurm assured him in the negative. As the attorney testified: "Mr. Wurm was very anxious to close, have a closing as soon as possible, and I had to go back a second time to the Registry of Deeds because of my concern about this easement. To my best recollection, Mr. Wurm came into my office, I believe it was in my office, he came in a couple of times regarding the closing and selling this parcel to Mr. Gagner, and I asked him about the water, the water easement, which was mentioned, and he assured me that it did not concern the Gagner parcel." In addition, Mr. Gagner personally inspected the property prior to the purchase and was told by Warren Wurm that a water hydrant located immediately adjacent to the highway supplied water to the property. Mr. Gagner's inspection of the premises revealed no evidence of any other water main *209 crossing the property.[5] According to the attorney's testimony, "At the time, not finding any recorded easement, and being assured by Mr. Wurm that it did not affect the premises, coupled with the fact that the deed, the prior deed of the premises being conveyed, made no mention of the right of way, it seemed to me I had done as much as was necessary . . .." The foregoing summary represents the sum total of the steps taken by the plaintiffs, through their attorney, to determine whether the District in fact owned any interest in the property they were purchasing. At no time was any attempt made to contact the District to inquire of it whether any such interest existed. In view of all the facts the plaintiffs are charged with knowing, the failure to do so constituted a fatal omission in executing their duty of reasonable inquiry. The plaintiffs' attorney knew from the record that Joseph H. Blaisdell had once given a release to the District to maintain a line of water pipes at some location across the larger tract of which the Gagners were buying a portion. He admitted that the clause in the deeds put him on notice of a possible claim of the District in the property. What inquiry of the seller will satisfy the purchaser's duty of due diligence is in every case a question of fact. When the facts known to the purchaser cast doubt upon the very existence of the seller's title, he is bound to inquire of him whether he has any real title or not. Knapp v. Bailey, supra at 204-05, 9 A. at 124-25. The plaintiffs, by their attorney, recognized a duty to inquire of the seller, but upon receiving a false answer did nothing to check with the Kittery Water District, the named holder of the unrecorded interest. Knapp v. Bailey, supra, cannot be read to hold that inquiry of the seller will in all instances satisfy a purchaser's duty to inquire. Clearly, more could easily have been done here, and equally clearly, the true facts would have then been revealed. Kendall v. J. I. Porter Lumber Co., 69 Ark. 442, 64 S.W. 220 (1901); Ostrom v. Ferris, 99 N.J.Eq. 551, 134 A. 305 (1926), aff'd mem., 103 N.J.Eq. 22, 141 A. 920 (1928); Ohio River Junction R. R. Co. v. Pennsylvania Co., 222 Pa. 573, 72 A. 271 (1909); Pender v. Dowse, 1 Utah 2d 283, 265 P.2d 644 (1954). The District, named as grantee of the interest, had its office in the same town where the subject property was located, and, as an active public utility, could be expected to maintain at a readily available office comprehensive maps and records relating to the easements for its mains. Under these circumstances, the purchasers were bound to inquire of the District, as the most reliable source of information, whether it still claimed the rights referred to in the deeds. Under all the circumstances, the failure to seek an explanation beyond that given by Warren Wurm, who, as the principal of the corporate seller, had an obvious interest in nondisclosure, can only be viewed as a failure of due inquiry. The Gagners are "chargeable with notice of the facts which by ordinary diligence [they] would have ascertained." Knapp v. Bailey, supra, 79 Me. at 204, 9 A. at 124. The entry must be: Appeal sustained. Judgment reversed. NOTES [1] At the time of the attorney's title search in 1969, the District owned an unrecorded water pipe easement over the property that the Gagners purchased. The easement was not recorded until December 13, 1973. All parties agree that the District's act of recordation has no bearing upon the outcome of the present litigation. [2] In response to the District's "Motion for Determination of Appeal" the Superior Court justice entered a handwritten order at the bottom of the motion, reading: "Partial judgment rendered in this case adverse to Kittery Water District is under the pleadings a final judgment as to said Defendant from which said Defendant Water District may appeal as being in one aspect dispositive of the case as to said Defendant Water District and may be allowed." Although the court did not expressly refer to Rule 54(b), M.R.Civ.P., and its order was not technically in compliance with that rule, we treat that order as the functional equivalent of a Rule 54(b) certificate in view of the court's obvious intent to accomplish that result. To avoid future difficulties of interpretation, however, it is preferable that the Superior Court follow closely the dictates of Rule 54(b). [3] In view of our conclusion that the facts in this case add up to actual notice, we need not in addition inquire whether "constructive," or record, notice also existed. [4] 33 M.R.S.A. § 201-A, enacted by P.L.1977, ch. 504 (eff. July 15, 1977), now provides that "an exception, reservation or recital" in a deed of a property interest "shall not constitute actual notice within the meaning of section 201" of that interest unless it also contains either a specific reference to the volume and page of the registry or probate court record evidencing the conveyance, etc., or "[a]n adequate description by metes and bounds or by reference to the volume and page of the record of a survey plan of the property affected by the exception, reservation or recital, in which case the actual notice shall extend only to the property so described." The Gagners' purchase from Realty, and therefore their "actual notice" of the Kittery Water District easement, occurred in 1969, long prior to the effective date of section 201-A. [5] Shortly before the conveyance to the Gagners took place, the State had acquired title to a seven-foot strip along Route 1 which encompassed the land upon which lay the water hydrant. When he learned of that conveyance, the attorney testified that he formed the opinion that "even if that were the easement, it would no longer be an encumbrance on the premises."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520192/	464 F.Supp. 945 (1979) David C. STEVENSON, Plaintiff, v. J. C. PENNEY CO., Defendant. No. 78 C 3790. United States District Court, N. D. Illinois, E. D. February 15, 1979. 946 Ernest T. Rossiello, Ellen F. Weiss, Ernest T. Rossiello & Associates, P. C., Chicago, Ill., for plaintiff. P. Kevin Connelly, Lederer, Reich, Sheldon & Connelly, Chicago, Ill., for defendant. MEMORANDUM OPINION Motion to Strike MAROVITZ, Senior District Judge. Plaintiff David C. Stevenson brings this action under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. §§ 621 et seq., against defendant J. C. Penney Co. Plaintiff alleges, inter alia, that on June 8, 1978, defendant willfully discharged plaintiff from employment because of his age. Plaintiff seeks, (1) an order compelling defendant to re-instate plaintiff to his former position; (2) to enjoin defendant from violating the ADEA; (3) an order pendente lite reinstating plaintiff to his former position; (4) an award of all back pay, liquidated damages and attorney's fees; (5) a judgment of $100,000.00 for mental suffering; (6) $100,000.00 in punitive damages; and (7) any other legal or equitable relief to effectuate the purposes of the ADEA. Pending before the Court is defendant's motion to strike plaintiff's prayer for punitive damages and damages for mental suffering. Rule 12(f), Fed.R.Civ.P. The jurisdiction of this Court is invoked pursuant to 29 U.S.C. § 626(c). For the reasons set forth below, defendant's motion is granted. For the purposes of this motion, the alleged facts are not in dispute. Plaintiff alleges that on June 8, 1978, defendant willfully and intentionally discharged him from his position of employment because of his age. At the time of his discharge, plaintiff was 54 years old. At the time of his discharge, plaintiff's salary was $294.00 per week. Plaintiff further alleges that since and because of his discharge, he has suffered extreme diminution of morale, anxiety, nervousness and other psychological problems. I. The question before this Court is whether a plaintiff can recover punitive damages and damages for mental suffering under the ADEA. There is conflict among the Circuits on this question, and among different courts of the same Districts. The majority of the courts have held that an ADEA plaintiff cannot recover punitive damages in a private action against an employer. See, e. g., Murphy v. American Motors Sales Corp., 570 F.2d 1226 (5th Cir. 1978); Dean v. American Security Ins. Co., 559 F.2d 1036 (5th Cir. 1977); Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (3d Cir. 1977), cert. denied 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978); Looney v. Commercial Union Assur. Companies, 428 F.Supp. 533 (E.D.Mich.1977); Fellows v. Medford Corp., 431 F.Supp. 199 (D.Or.1977); Hannon v. Continental National Bank, 427 F.Supp. 215 (D.Colo.1977); Sant v. Mack Trucks, Inc., 424 F.Supp. 621 (N.D.Cal.1976); Platt v. Burroughs Corp., 424 F.Supp. 1329, 1338 (E.D.Pa.1976). But see contra, Kennedy v. Mountain States Tel. & Tel. Co., 449 F.Supp. 1008 (D.Colo.1978); Murphy v. American Motors Sales Corp., 410 F.Supp. 1403 (D.Ga.1976) 947 rev'd 570 F.2d 1226 (5th Cir. 1978); Rogers v. Exxon Research & Engineering Co., 404 F.Supp. 324 (D.N.J.1975) rev'd 550 F.2d 834 (3d Cir. 1977), cert. denied 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978). A majority of the courts have also held that an ADEA plaintiff may not recover damages for mental suffering as the result of an unlawful and willful discharge. See, e. g., Dean v. American Security Ins. Co., supra; Looney v. Commercial Union Assur. Companies, supra; Fellows v. Medford Corp., supra; Hannon v. Continental National Bank, supra; Sant v. Mack Trucks, Inc., supra; Platt v. Burroughs Corp., supra; Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973). But see contra, Combes v. Griffin Television, 421 F.Supp. 841 (W.D.Okl.1976). Neither the Supreme Court nor the Seventh Circuit Court of Appeals has yet addressed the issue. At least three judges of this District, however, have followed the minority position, as expressed by Judge Stern in Rogers v. Exxon Research & Engineering Co., 404 F.Supp. 324, supra, and have allowed claims for both punitive damages and damages for mental suffering. Lo Cascio v. Teletype Corp., 74 F.R.D. 108 (N.D.Ill.1977) (Marshall, J.) (dicta); Bertrand v. Orkin Exterminating Co., Inc., 419 F.Supp. 1123 (N.D.Ill.1976) (Decker, J.) (addressing only the question of compensatory damages for mental suffering); Karijolic v. Illinois Bell Telephone Co., 77 C 1951 (N.D. Ill. October 26, 1977) (McGarr, J.). We also note that in a recent decision, Judge Warren of the Eastern District of Wisconsin allowed a claim for mental suffering. Morton v. Sheboygan Memorial Hospital, 458 F.Supp. 804 (E.D.Wis.1978). The Morton court noted, however, that there is a split on the question in its own District. Compare Jaeger v. American Cyanamid Co., 442 F.Supp. 1270 (E.D.Wis. 1978) with Buchholz v. Symons, 445 F.Supp. 706 (E.D.Wis.1978). II. § 7(b) of the ADEA, 29 U.S.C. § 626(b), provides: "The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided; That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section. Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion." (Emphasis added). § 7(c) of the ADEA, 29 U.S.C. § 626(c) provides in pertinent part: "Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: . . ." (Emphasis added). The conflict in the interpretation of the statute results primarily from application of the phrase "legal or equitable relief." In Kennedy v. Mountain States Tel. & Tel. Co., supra, for example, the court concluded that Congress must have intended the phrase to carry its ordinary meaning. Because punitive damages are a form of "legal relief," the court held that such damages are a remedy contemplated by the ADEA. 948 The most persuasive policy argument against such an interpretation, however, goes to one express purpose of the ADEA. As reflected by § 7(b) of the ADEA, 29 U.S.C. § 626(b), Congress sought to "effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion." Some courts fear that the possibility of a plaintiff recovering traditional tort awards, should he or she pursue litigation, would dissuade good faith negotiations. As one court stated, the threat of large mental suffering recoveries would aid conciliation as much as if "the alleged discriminatee was permitted to enter the conference room armed with a blackjack and a 45 caliber revolver." Platt v. Burroughs Corp., supra at 1337. In accord, Sant v. Mack Trucks, Inc., supra; Rogers v. Exxon Research and Engineering Co., supra. On the other hand, a minority of the courts, particularly the courts of this District, have found the language of Judge Stern in Rogers a persuasive and compassionate argument for allowing both punitive damages and damages for mental suffering in cases of willful ADEA violations. Judge Stern's observations reflect the sentiments of this Court: "In measuring the wrong done and ascertaining the appropriate remedy here, the Court is aware that the most pernicious effect of age discrimination is not to the pocketbook, but to the victim's self-respect. As in this case, the out-of-pocket loss occasioned by such discrimination is often negligible in comparison to the physiological and psychological damage caused by the employer's unlawful conduct." Rogers v. Exxon Research & Engineering Co., supra, 404 F.Supp. at 329. However, in reversing the district court decision in Rogers, the Court of Appeals for the Third Circuit noted: "Although involuntary retirement after lengthy service may be a traumatic experience for an employee, statutory silence circumscribes the relief that can be obtained." Rogers, supra, 550 F.2d at 836. The divergence in interpretations of the remedies provision of the ADEA can be attributed to some extent to the lack of legislative history discussing the parameters of legal relief contemplated by Congress. The legislative history concerning § 7(c) of the 1967 Act, 29 U.S.C. § 626(c), does little more than repeat the crucial language of the statute. See, 2 U.S.Code Cong. & Admin. News, 90th Cong., 1st Sess., pp. 2222-23 (1967). § 7(c) of the ADEA, 29 U.S.C. § 626(c), however, was recently amended by Congress. In line with the Supreme Court's decision in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), the statute now explicitly gives plaintiffs under the Act the right to a jury trial. Although the language of the remedies provision was left substantively unchanged, the conference committee report makes it clear that Congress does not intend damages for mental suffering nor punitive damages to be available in an ADEA action: [Under the ADEA] `amounts owing' contemplates two elements: First, it includes items of pecuniary or economic loss such as wages, fringe, and other job-related benefits. Second, it includes liquidated damages (calculated as an amount equal to the pecuniary loss) which compensate the aggrieved party for nonpecuniary losses arising out of a willful violation of the ADEA. . . . The ADEA as amended by this act does not provide remedies of a punitive nature. The conferees therefore agree to permit a jury trial on the factual issues underlying a claim for liquidated damages because the Supreme Court has made clear that an award of liquidated damages under the FLSA is not a penalty but rather is available in order to provide full compensatory relief for losses that are `too obscure and difficult of proof for estimate other than by liquidated damages.' Overnight Transportation Company v. Missel, 316 U.S. 570, 583-84, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942). H.R.Report No. 95-950, 95th Cong., 2d Sess. (March 14, 1978); see, U.S.Code Congressional 949 & Admin.News, 95th Cong., 2d Sess., pp. 504, 535 (1978). The 1978 amendments appear at Pub.L. 95-256, April 6, 1978, 92 Stat. 190, 191. We find the conference committee report dispositive of the question of whether punitive damages and damages from mental suffering are available under the ADEA. "Committee reports are usually considered the most important documents in determining the legislative intent of Congress." J. Jacobstein & R. Mersky, Fundamentals of Legal Research, 166 (1977). Also see, Zuber v. Allen, 396 U.S. 168, 186, 90 S.Ct. 314, 324, 24 L.Ed.2d 345 (1969) ("A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation."). The one court which had the assistance of the recent amendments and accompanying committee report concluded that "`legal relief' refers to the `unpaid minimum wages or unpaid overtime compensation' and `liquidated damages' categories of relief under Section 626(b)." Riddle v. Getty Refining & Marketing Co., 460 F.Supp. 678 (N.D.Okl. 1978). We agree with Judge Cook that "recent developments provide a definitive resolution of the previous conflict between the courts on this question." Ibid. We therefore hold that punitive damages and compensatory damages for mental suffering are not available legal remedies under the ADEA. Accordingly, defendant's motion to strike is granted.[1] NOTES [1] Subsequent to the drafting of this Memorandum Opinion, defendant submitted additional authority. In an unpublished but well reasoned opinion, Judge Bua of this District found that the conference committee report discussed above clearly indicates congressional intent to exclude punitive damages from the ADEA, and strongly "reinforces the notion that liquidated damages as provided under the Act are intended to be the sole measure of compensation for non-pecuniary loss." Brin v. Bigsby and Kruthers, 78 C 2892 (N.D.Ill. January 9, 1979) (Slip op. at p. 3).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520195/	587 S.W.2d 729 (1979) Benjamin Dale ALEXANDER, Appellant, v. The STATE of Texas, Appellee. No. 55916. Court of Criminal Appeals of Texas, Panel No. 1. October 17, 1979. 730 William R. Cummings, New Caney, for appellant. James H. Keeshan, Dist. Atty. and J. C. Durst, Asst. Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State. Before ODOM and W. C. DAVIS, JJ. OPINION W. C. DAVIS, Judge. This is an appeal from a conviction for the possession of heroin, with intent to deliver. Punishment was assessed by the jury at 99 years confinement. In his first ground of error, appellant contends that the evidence is insufficient to corroborate the testimony of an accomplice witness, and that, thus, the evidence is insufficient to show that he possessed the heroin. We agree. The record reflects that on May 30, 1975, narcotics agent Raymond Jones received some information about some heroin. On the basis of that information, Officers Ray and Burns undertook surveillance at a residence on Cochran Street on the morning of May 31, 1975. Officer Jones joined them there later. Later that evening, around 8:30-8:45 p. m., Tim Fraley was arrested leaving the residence. Jones testified that the officers received information from Fraley that there was more heroin inside the house and that more drugs would be arriving later. Based on this information, the officers entered the residence. Inside the residence were Albert Fulton and his wife and Gary Alley and his girlfriend. The parties were searched, and heroin was found on Fulton and Alley. They were placed under arrest. Officer Jones testified that the officers were told by Fulton and Alley that more drugs would be arriving later on that evening, brought by two persons referred to as "Ben" and "Bobbie" (a female), who would be driving a dark blue Cadillac, to arrive around 10:30-11:00 p. m. The officers remained at the residence on the basis of that information. At around 11:00 p. m., a dark blue Cadillac, driven by a woman, pulled up into the driveway. The passenger in the vehicle, later identified as appellant, got out of the car and went to the front door of the residence. He was asked inside. Meanwhile, an officer approached the driver of the car, 731 later identified as Bobbie, and brought her into the house also. Inside the residence, "Ben," or appellant, was searched. No contraband was found on him. Bobbie was also searched, and two small packets, later found to contain heroin, were found on her, one hidden in her bra and another on top of her head, underneath her wig. On this basis, both appellant and Bobbie were placed under arrest. A search of the blue Cadillac revealed no more contraband. Albert Fulton testified on behalf of the State, and stated that during the day before the arrests, he had spoken to appellant on the telephone, and that appellant was supposed to come to the residence at about 10:30 p. m. to bring him heroin. He testified that he had previously bought heroin from appellant on several occasions, and that he had met Bobbie once before in the company of appellant. He also testified that since the arrests, appellant had threatened him twice if he testified. Fulton also stated that he had asked appellant why he had not had the heroin on him, and that appellant had stated that he gave the heroin to Bobbie because of the presence of cars in the driveway of the residence. Further testimony showed that the blue Cadillac in which the two were riding belonged to appellant. The trial court instructed the jury on the law of accomplice witnesses and on the law of parties. The jury then found appellant guilty of possession of the heroin found on Bobbie. In order to establish unlawful possession of a controlled substance, the State must prove that the defendant exercised care, control and management over the contraband and that the defendant knew that the matter possessed was contraband. Weirsing v. State, 571 S.W.2d 188 (Tex.Cr.App. 1978); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977); Hernandez v. State, 538 S.W.2d 127 (Tex. Cr.App.1977). Possession of the controlled substance need not be exclusive, and evidence which shows that the defendant jointly possessed it with another is sufficient. Weirsing v. State, supra; Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976). The mere presence of the defendant at a place where the substance is possessed does not, in itself, justify a finding of his joint possession. Weirsing v. State, supra; Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Woods v. State, supra. Where the accused is not in exclusive control of the place where the substance is found, it cannot be concluded that he had knowledge of the contraband or control of it unless there are additional independent facts and circumstances which affirmatively link the defendant to the contraband. Weirsing v. State, supra; Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Barnes v. State, 504 S.W.2d 450 (Tex.Cr.App.1974); Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972). This affirmative link is established by showing additional facts and circumstances which indicate the defendant's knowledge and control. Weirsing v. State, supra; Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra. Therefore, it is necessary to examine the record before this Court in order to find an affirmative link between appellant and the contraband. The record reflects that heroin was found secreted on the person who accompanied appellant that evening, and who was driving his car. There was no evidence that appellant gave any inculpatory statements, or conflicting stories, or that he appeared nervous or made any furtive gestures or attempts to flee. The heroin was hidden on Bobbie and was not within plain view. No heroin was found on appellant, or in his automobile. The major source of the testimony connecting appellant to the heroin came from Albert Fulton, who testified that appellant was to deliver heroin that evening and that he had been involved in heroin transactions in the past. However, Article 38.14, Vernon's Ann.C.C.P., provides that: 732 "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Further, the Controlled Substances Act, Tex.Rev.Civ.Stat.Ann., Article 4476-15, Sec. 1.02(8), provides, in part: "Proof of an offer to sell [a controlled substance] must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree." In Carillo v. State, 566 S.W.2d 902 (Tex. Cr.App.1978), we reiterated that: "[t]he test as to the sufficiency of the corroboration [of the accomplice-witness testimony] is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not." See also, Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968). The mere showing that an offense occurred is not sufficient corroboration. Carillo v. State, supra; Windham v. State, 479 S.W.2d 319 (Tex.Cr.App.1972). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt, Carillo v. State, supra; Atwood v. State, 509 S.W.2d 342 (Tex.Cr.App. 1974); it need only make the accomplice's testimony more likely than not. Carillo v. State, supra; Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974). Thus, we turn to an examination of the record to ascertain what other evidence adduced at trial could corroborate Fulton's testimony that the heroin belonged to appellant. The record reflects that Officer Jones testified extensively concerning information which he received from Fraley, Fulton and Alley that appellant was going to deliver the heroin to them. However, Officer Jones' testimony in this regard was clearly hearsay, since these out-of-court statements were offered to prove their truth, i. e., that appellant was possessing heroin and was intending to deliver it. In Ex parte Herbert, we reiterated that hearsay evidence, even admitted without objection, constitutes no evidence and is without probative force. Hanna v. State, 546 S.W.2d 318 (Tex.Cr.App.1977); Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975); Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr. App.1975). Thus, we are constrained to hold that Officer Jones' testimony concerning appellant's possession of the heroin was without probative force and, therefore, cannot be considered as evidence in corroboration of the accomplice witness' testimony. The only other testimony given by Officer Jones was that: "[Appellant] on that evening appeared to be under the influence of what I thought at first to be an intoxicating beverage, but I could not smell anything on his breath." No other evidence concerning appellant's physical condition was offered. There is no testimony that he was under the influence of heroin, or that he acted like or appeared like someone under the influence of heroin. There was no testimony that needle marks were observed on his arms. Although Officer Jones testified that he could not smell alcohol on appellant, there was no testimony as to how close he ever got to appellant or whether he was ever in close enough proximity to appellant to be in a position to smell alcohol. We recognize that a defendant's being under the influence of some substance can sometimes be one factor in establishing an affirmative link between that defendant and a controlled substance. However, in the instant case, it would be speculation for us to assume that appellant was under the influence of heroin, which would tend to link him to the contraband found on his companion. We do not find this bit of evidence alone to be sufficient to tend to connect appellant to the offense or to make the accomplice witness' testimony more likely than not. 733 Thus, after a careful search of the record, we are compelled to conclude that there was no evidence adduced at trial to corroborate the testimony of the accomplice witness as required by Article 38.14, supra; and Article 4476-15, Sec. 1.02(8), supra. Appellant was not found in immediate possession of the heroin, and the accomplice witness provided the testimony which would establish appellant's possession of the heroin. Since we conclude that the evidence is insufficient to corroborate this testimony, we must also conclude that the evidence is insufficient to sustain appellant's conviction for the possession of heroin. While the evidence adduced at trial may certainly raise a strong suspicion of appellant's guilt, this is not sufficient for conviction beyond a reasonable doubt. Accordingly, the judgment is reversed and remanded to the trial court with instructions to enter a judgment of acquittal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3033146/	United States Court of Appeals FOR THE EIGHTH CIRCUIT _____________ No. 03-2086SI _____________ United States of America, * * On Appeal from the United Appellee, * States District Court * for the Southern District v. * of Iowa. * Albert A. Wheeldon, * [To Be Published] * Appellant. * ___________ Submitted: December 3, 2003 Filed: December 18, 2003 ___________ Before LOKEN, Chief Judge, RICHARD S. ARNOLD and BOWMAN, Circuit Judges. ___________ PER CURIAM. Albert A. Wheeldon appeals the sentence imposed by the District Court1 following remand for resentencing. At resentencing, the District Court sentenced Wheeldon to one year and nine months (twenty-one months) imprisonment and three years supervised release. Counsel has moved to withdraw and filed a brief pursuant 1 The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa. to Anders v. California, 386 U.S. 738 (1967), suggesting the District Court erred in not granting Wheeldon a downward departure. We need not consider the departure issue, because Wheeldon did not raise it in his first appeal. See United States v. Kress, 58 F.3d 370, 373 (8th Cir.1995) (“Where a party could have raised an issue in a prior appeal but did not, a court later hearing the same case need not consider the matter.”). In any event, the District Court’s refusal to depart downward is unreviewable, because its statements at resentencing indicate it was aware of its authority to depart. See United States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000). We have reviewed the record for any nonfrivolous issues in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), and we have found none. Accordingly, we grant counsel’s motion to withdraw, and we affirm. ______________________________ -2-	01-03-2023	10-13-2015

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