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115 F.2d 277 (1940)
CRAB ORCHARD IMPROVEMENT CO.
v.
CHESAPEAKE & O. RY. CO.
No. 4686.
Circuit Court of Appeals, Fourth Circuit.
November 12, 1940.
*278 Fletcher W. Mann, of Beckley, W. Va., for appellant.
Jackson N. Huddleston, of Huntington, W. Va. (C. W. Strickling and Fitzpatrick, Brown & Davis, all of Huntington, W. Va., on the brief), for appellee.
Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.
DOBIE, Circuit Judge.
This is an appeal from the final judgment of the District Court for the Southern District of West Virginia, dismissing the plaintiff's action to recover from the defendant the amount which plaintiff had been compelled to pay to the West Virginia Workmen's Compensation Fund as a consequence of the defendant's allegedly wrongful act. Crab Orchard Improvement Co. v. Chesapeake & Ohio Ry. Co., 33 F. Supp. 580.
Appellant, Crab Orchard Improvement Company (plaintiff in the original action), operated a coal mine at Eccles, West Virginia. Appellee, Chesapeake & Ohio Railway Company (a Virginia corporation), owned and operated a railroad which ran near appellant's coal mine and into and under appellant's coal tipple. On December 9, 1936, one of appellee's engines, pushing a load of empty coal cars, was being operated by an employee of appellee along appellee's spur track in the direction of the coal tipple. The rear empty coal car struck and killed one of appellant's employees, Andy Henry, while he was in the performance of his duties as an employee of appellant. Because of this death, appellant, as a member of the West Virginia Workmen's Compensation Fund (hereinafter called the Fund), was obliged to pay $4,000 into the Fund; and was further subjected to an increased rate of payment to the Fund, which up to the time of the filing of this action had amounted to $11,000.
*279 Alleging, accordingly, that it had sustained injuries in the amount of $15,000 as a result of appellee's negligence, appellant brought an action on December 6, 1937, in the Circuit Court of Raleigh County, West Virginia, to recover the amounts paid by it under the West Virginia Workmen's Compensation Act (hereinafter called the Act). The suit was thereafter removed to the District Court of the United States for the Southern District of West Virginia. Appellee filed a motion to dismiss the action, and this motion was sustained by the District Court. This appeal was taken from the final judgment of the District Court dismissing the plaintiff's action.
As the District Court stated (33 F.Supp. at page 582): "The question presented in this case is whether an employer who has been forced to pay compensation or death benefits to the dependents of one of its employees who was killed in the course of his employment as a result of the negligence of a third party, may recover the amount so paid, through no fault of its own, from the negligent third party, in the absence of any provision for subrogation or assignment in the Compensation Act by virtue of which the payments were made."
As we view the appellant's theory of the case, there are three specific phases to this question: (1) Has the employer a common-law right of subrogation against the third party tort-feasor? (2) Has the employer a quasi-contractual action for indemnity against the tort-feasor? (3) Has the tort-feasor, by his negligent injury of the employee, breached a legal duty owed to the employer, so as to give rise to a civil action?
In considering the legal relationship and liability of employer to employee and the relationship of a third party tort-feasor to employee and to employer, we necessarily must examine the West Virginia Workmen's Compensation Act (Code W.Va.1931, 23-1-1 et seq.), the West Virginia decisions applicable thereto, and the West Virginia decisions, if any, pertaining to the principle of common-law subrogation. See Erie Ry. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487.
As an introduction to these considerations, we take note of the provisions in the Workmen's Compensation Acts of most of the states, which in express terms assign to the employer, or subrogate him to, the rights of the injured employee, at least to the extent of the compensation paid. E.g., Va. Code Ann. (Michie, 1936) § 1887 (12). The express inclusion of the subrogation provision in Workmen's Compensation Acts prevents the employee from acquiring for a single injury two separate remedies the one, in tort, against the third party tort-feasor, the other, in contract, under the Workmen's Compensation Act; for it is quite generally held that, in the absence of such an express statutory grant to the employer, the employee retains the right to collect full damages from the third party tort-feasor, in addition to his right to collect compensation under the Act. Cf. Chesapeake & Ohio Ry. Co. v. Palmer, 1927, 149 Va. 560, 140 S.E. 831, 836 (old Act); Newark Paving Co. v. Klotz, 1914, 85 N.J.L. 432, 91 A. 91 (old Act). See also notes (1940) 26 Virginia L.Rev. 524, 525; (1925) 38 Harv.L.Rev. 971, 972. And this is the rule in West Virginia where the Act has no provision covering assignment or subrogation. Merrill v. Marietta Torpedo Co., 1917, 79 W.Va. 669, 92 S.E. 112, L.R.A.1917F, 1043; Mercer v. Ott, 1916, 78 W.Va. 629, 89 S.E. 952.
In the last-cited case, the Supreme Court of Appeals of West Virginia succinctly stated that the West Virginia Act neither released the third party tort-feasor nor assigned the right of action to the employer; that it dealt solely with the relationship of employee and employer, without reference to the tort-feasor; that it created a fund to which an injured employee or his dependents (in case of death) could apply for compensation for injuries sustained in the course of, and arising out of, the employment; that the right to recover compensation out of the Fund was radically different from the right to recover damages from a tort-feasor. Mercer v. Ott, supra, 89 S.E. at page 955. The court then went on to hold that though the employee's personal representative had received damages from the third party tort-feasor, he still retained the right to receive compensation from the Fund. The converse of this holding was recognized in Merrill v. Marietta Torpedo Co., supra, where it was held that an employee, who had received compensation from the Fund, was not thereby prevented from suing the third party tort-feasor.
Although it would seem to, it does not necessarily follow that because the employee retains his right of action against the third party tort-feasor, the employer who has paid compensation as a result of *280 this injury will not be subrogated to this right. Hence, though the Mercer and Merrill cases, supra, are very persuasive, there is no direct authority in West Virginia denying the employer the benefits of this equitable right. It thus becomes necessary to examine both the decisions in other jurisdictions and the principles governing common-law subrogation.
Professor Vance, in his outstanding treatise on Insurance (2d Ed., 1930) p. 680, seems to favor the view that the employer, who has paid compensation to his employee under an Act making no provision for subrogation, is, nevertheless, invested with a common-law right of subrogation. This same view is shared by Professor Hardman, through the analogy of fire and marine insurance. See Hardman, The Common-Law Right of Subrogation Under Workmen's Compensation Acts (1926) 26 W.Va.L.Q. 183, 184. However, we believe that under the direct authorities and under the principles governing common-law subrogation, the employer, under such a statute, is left without this remedy against the third party tort-feasor. McCullough v. John B. Varick Co., 1939, 90 N.H. 409, 10 A.2d 245; Newark Paving Co. v. Klotz, supra. See notes (1940) 26 Virginia L. Rev. 524, 525; (1925) 38 Harv.L.Rev. 971, 972 (1918) 18 Col.L.Rev. 598, 600.
The Supreme Court of Appeals of Virginia has clearly recognized that the employer has no common-law right of subrogation against the third party tort-feasor. As the court stated in United States F. & G. Co., Inc. v. Blue Diamond Coal Co., Inc., 1933, 161 Va. 373, 170 S.E. 728, 730: "The right of the employer, or his insurance carrier, does not rest on the principle of subrogation. It is wholly the creature of the statute * * *." This same position is adopted by the New Hampshire court in McCullough v. John B. Varick Co., supra. In that case, an employer brought an action similar to the one in the instant case. He had paid compensation under the New Hampshire Workmen's Compensation Act because of the injury to his employee caused by the alleged negligence of the third party tort-feasor. Like the West Virginia Act, the New Hampshire Act deals solely with the relation of employer and employee and does not concern itself with the rights and obligations of third persons. In denying the right of subrogation to the employer, the court stated (10 A.2d at page 246): "The workmen's compensation laws of many states provide that the employer shall be subrogated to the rights of an injured employee against a third person who is legally liable to him for causing the injury. Our statute contains no such provision. The repeated inclusion of these provisions in the statutes referred to would seem to indicate that, without them, the employer would have no right of subrogation, and such was the conclusion of this court with reference to cases involving the death of an employee, in Holland v. Morley Button Company, supra [83 N.H. 482, 145 A. 142]."
The doctrine of subrogation and, as we shall try to show hereinafter, the doctrine of indemnity are both based upon the principle that a benefit has been conferred upon the defendant at the expense of the plaintiff. Then, since the plaintiff has discharged an obligation owed by the defendant, it seems proper for the plaintiff to be subrogated to the rights that the principal creditor had against the defendant to the extent of such discharge. Compare Restatement of Restitution § 162 with § 76 (see parallel notes). But an employer making payment under the West Virginia Act fulfills only his own contractual obligation; he does not in any way satisfy the third party tort-feasor's liability to the employee. Merrill v. Marietta Torpedo Co., supra. The liability of the third-party tort-feasor to the employee still exists, as it does in the instant case, notwithstanding the fact that the employee has made a recovery from the Fund. No basis, therefore, remains (under the principle set out above) for applying the doctrine of subrogation. As the court said in McCullough v. John B. Varick Co., supra, 10 A.2d at page 247: "As hereinafter shown, the obligation to pay compensation under the statute rests solely upon the employer and no such obligation is imposed upon a third party who causes injury to one not his servant. It, therefore, appears that the necessary relationship between the parties, out of which a right to subrogation might arise, is not present in a case like the one at bar * * *. It may now be stated without qualification that, in the absence of contract, legislation is essential to create a right of subrogation in the employer to the rights of an injured employee against a third person." (Italics ours.)
For further authorities sustaining the proposition that no common-law right of subrogation exists under the facts of this *281 case, see Travelers' Insurance Co. v. Georgia Power Co., 1935, 51 Ga.App. 579, 181 S.E. 111, 113; Holland v. Morley Button Co., 1929, 83 N.H. 482, 145 A. 142. Cf. The Federal No. 2, 2 Cir., 1927, 21 F.2d 313.
Before leaving the doctrine of subrogation in its application to the employer's rights under Workmen Compensation Acts, we believe it will be helpful to examine the subrogation-principle in its relation to insurance law. In property insurance (i. e., fire or marine insurance), it is well-settled that the insurer, who has been required by contract to indemnify the insured for the actual loss suffered, is entitled to be subrogated to the legal rights belonging to the insured at the time of the loss against the tort-feasor. See Vance on Insurance, p. 668. This rule is the result of the close connection between the principle of indemnity and that of subrogation. Thus, as under indemnity or property insurance the actual value of the property is always the limit of recovery, the insured is required, after being indemnified by the insurer, to subrogate the insurer to any claim or right that he might have against the tort-feasor. Id. at pp. 77, 79. It follows that where the indemnity feature is not present in the insurance contract (viz., life or accident insurance) the subrogation feature has no application. Mercer Casualty Co. v. Perlman, 1939, 62 Ohio App. 133, 23 N.E.2d 502, 504; Aetna Life Ins. Co. v. Parker & Co., 1903, 30 Tex. Civ. App. 521, 96 Tex. 287, 72 S.W. 168, 580, 621 (accident insurance). See also Connecticut Mutual Life Ins. Co. v. New York & N. H. Ry. Co., 1856, 25 Conn. 265, 65 Am.Dec. 571, 576, 577; Mobile L. Insurance Co. v. Brame, 1877, 95 U.S. 754, 24 L. Ed. 24 L.Ed. 580 (life insurance).
Life insurance, though based on the indemnity principle, is not itself a contract of indemnity. One of the chief reasons for this is the difficulty involved in placing any pecuniary value upon life. Indemnity insurance looks to a reimbursement to the insured of the actual loss sustained. It is this difficulty of appraising human suffering, similar to the difficulty of appraising the value of human lives, that has prompted most of the courts to deny the subrogation feature to accident, as well as life, insurance. In holding that there is no right of subrogation in favor of the insurer on an accident insurance contract, the court in Suttles v. Railway Mail Ass'n, 1913, 156 A.D. 435, 141 N.Y.S. 1024, 1025, stated: "* * * if the loss insured against is not the same loss for which plaintiff [the insured] had a right of action against the wrongdoer, defendant [the insurer] had no right of subrogation to such claim."
And to the same effect in Gatzweiler v. Milwaukee Elec. Ry. & L. Co., 1908, 136 Wis. 34, 116 N.W. 633, 18 L.R.A.,N.S., 211, 128 Am. St. Rep. 1057, 16 Ann.Cas. 633, the court said: "The doctrine aforesaid [of subrogation] is based on the theory that in a contract of fire insurance the company is a surety and so upon the general equitable principles of subrogation when it, as indemnitor, pays a loss caused by the negligence of a third person its relation with such person is that of principal obligor and surety. It has all the rights against the surety which the principal creditor, so to speak, formerly had. The insured has one claim which he can enforce against either party, but he can have but one satisfaction and the party primarily liable is relievable only by assuming the burden."
The analogy of payment under Workmen's Compensation Acts to accident or life insurance contracts is compelling. See Merrill v. Marietta Torpedo Co., supra, 92 S.E. at page 112; Holland v. Morley Button Co., supra, 145 A. at page 144; cf. Fox v. Dallas Hotel Co., 1922, 111 Tex. 461, 240 S.W. 517, 520. Both are subject to the same difficulties in the valuation of human life and human suffering. In fact, compensation from a Fund is not measured by the extent of the employee's injury; rather is it measured by the size of his weekly wage. Thus, instead of being an indemnity, workmen's compensation is more in the guise of a pension or an investment, and, like life and accident insurance, is not subject (in the absence of a statute or specific contractual provision) to the principle of subrogation. But see Hardman, supra, 26 W.Va.L.Q. at p. 184; cf. Vance on Insurance, p. 680.
Before we leave the doctrine of subrogation, mention should be made of the case of Travelers' Ins. Co. v. Great Lakes Engineering Works Co., 6 Cir., 1911, 184 F. 426, 36 L.R.A.,N.S., 60. That case, we think, was really decided on principles of agency; but, insofar as it supports the application of the doctrine of subrogation to the factual situation under discussion we do not feel obliged to follow it.
*282 In thus denying the application of the doctrine of common-law subrogation, we do not find it necessary here to consider the applicability of the West Virginia Wrongful Death Statute to a suit by an employer under the doctrine of subrogation. Code W.Va. 1931, §§ 55-7-5, 6.
We next consider that phase of appellant's theory which deals with the principle of indemnity. This principle is closely interrelated with the principle of subrogation, and, oftentimes, the possessor of the one right is also the possessor of the other. Cf. Restatement of Restitution § 76g. In any event, much of what has been said in reference to the doctrine of subrogation, as here considered, will apply with equal force to the doctrine of indemnity. A broad definition of indemnity is offered in section 76 of the Restatement of Restitution: "A person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct." A scanning of this definition reveals that the indemnity principle is more limited in application than that of subrogation. Not only must a benefit be conferred upon the defendant by a discharge of his duty or obligation, but the discharge must have occurred under circumstances in which the plaintiff was, at the same time, discharging a personal obligation coextensive with that of the defendant.
We think that there is no factual basis here which justifies indemnification. As has been pointed out above, the third party tort-feasor receives no benefit by the employer's payment under the Act. Furthermore, as the duty and obligation of the employer are different and distinct from the duty and obligation of the third party tort-feasor, the requisites for the application of the indemnity principles are not met. A similar conclusion was reached in McCullough v. John B. Varick Co., supra, 10 A.2d at page 247:
"Normally the right to indemnity arises only when there has been a discharge by one person of a duty also owed by another. * * *
"Clearly this is not a case for indemnity within the principles thus stated. The duty of an employer to pay compensation under the statute is entirely separate and distinct from the duty of a third person to pay damages to a servant for personal injuries caused by his negligence. * * *
"We, therefore, conclude that the essential legal obligations from which a right to indemnity may arise, are lacking in the present case."
If a contrary conclusion were reached, the result would be to impose upon the appellee a double liability, which would require it to pay both damages at common law for the injury to the employee, and also the amount of compensation already paid by the appellant.
Foster & Glassell Co. v. Knight Bros., 1922, 152 La. 596, 93 So. 913, held that an employer, by making payment under the Louisiana Workmen's Compensation Act (which gave the employee an option either to claim compensation under the Act or to sue the third party tort-feasor), had an independent action of indemnity against the third party tort-feasor for the amount of compensation which the employer had been obliged to pay his employee. Although under the Louisiana Act (as is not true under the West Virginia Act) the tort-feasor could not be subjected to a double liability, we still believe the case was wrongly decided. Staples v. Central Surety & Insur. Corp., 10 Cir., 1932, 62 F.2d 650, 653, held that under the Oklahoma Compensation Law the employer, as a result of the negligence of the tort-feasors, "* * * had a cause of action, in his own right, for indemnity against appellants [tort-feasors], at common law entirely independent of any provisions of the Compensation Law * * *." The court reached this conclusion by regarding compensation under Workmen's Compensation Acts as analogous to property or indemnity insurance. 62 F.2d at page 654. In this view, we believe that the learned court fell into error. We have already stated our reasons for preferring the closer analogy of Workmen's Compensation Acts to life and accident insurance.
Appellant proceeds upon the final theory that appellee breached a legal duty owed to appellant, and that this breach is actionable. This theory predicates appellee's liability to the appellant on the ordinary principle of tort-liability that appellee's negligence was the proximate cause, in a chain of causation, resulting in damage to the appellant. The courts, however, have quite uniformly treated such damages as too remote and too indirect to support a recovery. Mobile *283 L. Insurance Co. v. Brame, supra, 95 U. S. at page 758; The Federal No. 2, supra; Connecticut Mutual Life Ins. Co. v. New York & N. H. Ry. Co., supra, 25 Conn. 265, 65 Am.Dec. at page 574. No legal duty is here owed by the tort-feasor to the employer. It is only where an injury is intentionally calculated to harm the employer in his contractual obligations that recovery may be had. Lumley v. Gye, 2 El. & B1. 216. Where a husband is allowed to recover for loss sustained by injuries to his wife, or a father for loss of service or expense in the cure of his child, the tort-feasor is held responsible, not because of the contractual aspect of the relationship, but because of the special treatment given by the common law to the particular social status involved. As to these, the tort-feasor is held responsible because he is expected to recognize the natural and probable consequences of his wrong. See The Federal No. 2, supra, 21 F.2d at page 314. However, no such special treatment is given by our law to the relationship of employer and employee. And, until the legislature deems it wise to create a specific social employer-employee status, with additional obligations and immunities thereunto appertaining, the ordinary rules of tort law will here apply.
Appellant cites many cases to support his views. E. g., George A. Fuller Co. v. Otis Elevator Co., 1918, 245 U.S. 489, 38 S. Ct. 180, 62 L. Ed. 422; Washington Gas Light Co. v. District of Columbia, 1896, 161 U.S. 316, 16 S. Ct. 564, 40 L. Ed. 712; The No. 34 (L. Boyer's Sons Co.), 2 Cir., 1928, 25 F.2d 602; Pennsylvania Steel Co. v. Washington & Berkeley Bridge Co., D. C. N.D.W.Va. 1912, 194 F. 1011. But these cases are distinguishable. In each of them, the parties seeking indemnity either discharged an obligation for which the defendant was primarily responsible to the injured person, or there existed a contractual or a substantially similar legal relationship between plaintiff and defendant, or else there was a direct breach of a legal duty owed by the defendant to the party seeking indemnity.
We recognize that there are equities which favor here the contention of appellant. The underlying philosophy which has motivated the enactment of a Workmen's Compensation Act would appear to be best subserved when, under such a statute, the ultimate loss is made to fall on the third party tort-feasor, rather than on the innocent employer, and the injured employee is given only one satisfaction (not two satisfactions) for a single wrong. But the West Virginia Act was not drawn to carry out such a philosophy. Accordingly, in the absence of appropriate legislative action, we must follow the apposite rules and principles of the common law. Under the application of these rules and principles to the instant case, the appellant, we believe, is not entitled to the relief that it seeks.
For the foregoing reasons, the judgment appealed from will be affirmed.
Affirmed.
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FILED
NOT FOR PUBLICATION MAR 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10493
Plaintiff - Appellee, D.C. No. 4:07-CR-01808-CKJ
v.
MEMORANDUM *
MARTHA SUAREZ-LEON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Martha Suarez-Leon appeals from her jury-trial conviction and two
concurrent 120-month sentences for importation of cocaine, in violation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
EF/Research
21 U.S.C. §§ 952(a), and 960(a)(1), (b)(1)(B)(ii), and possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii). Pursuant to
Anders v. California, 386 U.S. 738 (1967), Suarez-Leon’s counsel has filed a brief
stating there are no grounds for relief, along with a motion to withdraw as counsel
of record. We have provided the appellant with the opportunity to file a pro se
supplemental brief. No pro se supplemental brief or answering brief has been
filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district
court’s judgment is AFFIRMED. Suarez-Leon’s motion for appointment of
counsel, filed on May 15, 2009, is DENIED.
EF/Research 2 08-10493
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761 S.W.2d 407 (1988)
Julian Moreno MORENO, Appellant,
v.
The STATE of Texas, Appellee.
No. A14-87-583-CR.
Court of Appeals of Texas, Houston (14th Dist.).
October 20, 1988.
Mike Degeurin, Houston, for appellant.
John F. Carroll, Houston, for appellee.
*408 Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.
OPINION
MURPHY, Justice.
Julian Moreno Moreno appeals his felony conviction for the offense of delivery of over four hundred grams of the controlled substance cocaine. Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 4.03(c), (d)(3) (Vernon Supp. 1988). A jury found him guilty, sentenced him to life imprisonment in the Texas Department of Corrections and assessed a $250,000 fine. We reverse the judgment of the trial court and order entry of a judgment of acquittal because there is insufficient non-accomplice evidence which tends to connect appellant with the delivery charged. Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 1979).
The State alleged that on April 24, 1987, in Harris County, Texas, appellant delivered cocaine weighing at least four hundred grams by aggregate weight, to G. Mize. The indictment alleged the three means of delivery included in Article 4476-15 § 1.02(7): actual transfer, constructive transfer, and offer to sell. Officer Glenn Mize of the Texas Department of Safety had met Maria Faye Honey while working undercover on an official investigation. He purchased small amounts of cocaine from her twice. On the second occasion, March 25, 1987, Mize asked her about purchasing larger amounts. Honey, who knew Mize only as "Glenn" told him her supplier, "John," could furnish a kilogram or more and that she would inquire about the price. The supplier, John Humphries, testified as an accomplice witness at appellant's trial. When Mize contacted Honey on April 21, 1987, she informed him she could deliver two kilograms.
While he was negotiating details of the two kilo purchase in a telephone conversation with Honey on April 21, 1987, Mize also spoke with Humphries. Humphries rejected the San Antonio location Mize requested and insisted the purchase take place in Houston. Responding to questions about the quality of the cocaine he could deliver, Humphries assured Mize he "had been dealing with the same two guys for a period of eight years to the point where he could almost speak Colombian." Mize arranged to purchase two kilograms of cocaine for $60,000 in cash. Humphries detailed how the transaction would take place: he and "one of them" would occupy a hotel room; Mize and Honey would occupy an adjoining room; a simultaneous exchange of cocaine and cash would occur through the door connecting the two rooms.
As they had previously planned, Mize met Honey at a Houston restaurant early in the evening of April 24, 1987. After Honey contacted Humphries, she and Mize each drove to a Holiday Inn, where Mize had already rented two adjoining rooms and, unknown to Honey, a third room for surveillance officers. Honey and Mize arrived at the Holiday Inn at approximately 7 p.m. and went into one of the two adjoining rooms to await the delivery. Honey telephoned Humphries twice while they waited. After speaking on the telephone to someone she called "Maureen" at 9:54 p.m., Honey told Mize "John and the two Colombians should be arriving any minute." Honey looked outside at 10 p.m. and announced "they are here."
Testimony from two surveillance officers assisting Mize shows that Humphries drove a Chevrolet Suburban automobile containing two passengers into the parking lot. Donald Keith Allen, the surveillance officer in the third room Mize had rented, testified that he looked out his window and saw Humphries park the vehicle just outside the door to Mize's room, whereupon Humphries and Hernando Dejesus Tabares left the Suburban. After they conversed briefly with the appellant, who remained seated in the front passenger seat of the Suburban, Humphries and Tabares went into the room adjoining that of Mize and Honey. One of them carried a suitcase. Agent Allen also testified that the appellant was "watching" him as Allen looked out the window.
Inside the motel, Honey went to the door connecting the two rooms as soon as she heard someone knock from the other side. *409 She spoke with Humphries, who asked for the money. Mize then refused to surrender the $60,000 immediately and insisted on seeing "some dope." After Honey got a package of cocaine from the adjoining room, Mize cut into it to ascertain whether it was actually cocaine and then called his "bag man" to deliver the money for the transaction, as he had told Honey he would. The "bag man" was actually Officer Allen; the request to deliver the money was Allen's signal to initiate the arrest. Shortly thereafter, several agents arrived at the scene. They arrested Humphries and Honey in the room. They arrested Tabares, who had left the motel room while the transaction was taking place, as he was attempting to flee. The appellant was arrested as he sat in the Suburban, where he had remained during the transaction in the motel. The police recovered cocaine weighing 1.0045 kilograms.
Humphries, who testified at appellant's and Tabares's trial pursuant to a plea bargain agreement with the State, identified the appellant as his supplier for this and other sales. In charging the jury, the court classified Humphries as an accomplice and tracked Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 1979). Pursuant to Article 38.14,
[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 (emphasis added).
In his first point of error, appellant maintains his conviction must be reversed and an acquittal entered pursuant to Article 38.14 because there is insufficient evidence tending to connect him to the offense, other than the testimony of Humphries. We agree. In its en banc decision in Reed v. State, 744 S.W.2d 112 (Tex.Crim.App.1988), the court of criminal appeals emphatically rejected misapplication of Article 38.14 by a "more likely than not" analysis and clearly stated that the statute provided the "only test" of the sufficiency of evidence to sustain a conviction when an accomplice inculpates the accused. 744 S.W.2d at 125 n. 10. Quoting from its 1968 opinion in Edwards v. State, the Reed court reemphasized that the statute requires this court 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 (emphasis in original, citations omitted).
744 S.W.2d at 125, quoting Edwards v. State, 427 S.W.2d 629, 632 (Tex.Crim.App. 1968). The Reed court rejected only the "more likely than not" test; it pointedly reaffirmed that the following rules, long associated with application of Article 38.14, would continue to apply:
(1) each case must be considered on its own facts and circumstances;
(2) all the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary;
(3) corroborative evidence may be circumstantial or direct;
(4) the combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused with the commission of the offense supplies the test;
(5) it is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt;
(6) insignificant circumstances sometimes afford most satisfactory evidence of guilt and corroboration of accomplice witness testimony.
744 S.W.2d at 126. If the record shows that the accused was present, as occurred in the instant case, Reed also restated the familiar rule that
[p]roof that the accused was at or near the scene of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction. *410 Reed, 744 S.W.2d at 127, quoting Brown v. State, 672 S.W.2d 487, 489 (Tex.Crim.App. 1984) (en banc) (emphasis added). Similarly, proof that "someone" committed an offense, expressly insufficient under Article 38.14, can also be a factor "to be considered along with other possible factors" in evaluating sufficiency challenges pursuant to Article 38.14. Reed, 744 S.W.2d at 126 (emphasis added).
Because the court rejected only the "more likely than not" test and reaffirmed the rules we have set out above, Article 38.14 continues to demand that the record contain non-accomplice evidence of suspicious circumstances which independently incriminate the accused before the jury can give effect to the accomplice's incriminating testimony. See Reed, 744 S.W.2d at 125-27; accord, Jackson v. State, 745 S.W.2d 4, 11 (Tex.Crim.App.1988) (en banc) (after eliminating the accomplice's testimony we must "examine the remaining evidence to ascertain whether it independently tends to connect the appellant to the commission" of the offense) (emphasis added).
In the case before us, it is undisputed that a delivery occurred and that the appellant was present as a passenger in the vehicle of an accomplice whose testimony unequivocally inculpates him. However, after considering the remainder of the record, based on the standards which Reed reaffirmed, we cannot say there is sufficient incriminating corroborating evidence which independently tends to connect the appellant to the delivery charged. Therefore, his conviction cannot stand.
Humphries unquestionably supplied the cocaine to the co-conspirator Honey. But while Humphries, in Honey's presence, referred to his suppliers as Colombians, nothing in the record suggests that Honey knew the identity of the person or persons who supplied the cocaine to Humphries, other than as purported Colombian nationals. Therefore, while she told Agent Mize that "John and the two Colombians should be arriving any minute," and, six minutes later, "they are here," the most her testimony establishes about the appellant is that Honey presumed the appellant was one of the two Colombians Humphries told her would soon arrive. There is no non-accomplice evidence that the two Colombians were referred to as suppliers on April 24, 1987, the date of the offense. While the transaction did take place in Houston as Humphries had proposed, there is nothing to show that the appellant was one of the same "two Colombians" Humphries had referred to in his telephone conversation with Agent Mize on April 21, 1987. Although circumstantial evidence can corroborate an accomplice's testimony, Reed, 744 S.W.2d at 126, evidence which identifies appellant only as "a Colombian" does not suffice to tend to connect him to the delivery alleged here.
Further, while a delivery did occur while appellant sat outside in the front seat of the Suburban, the record fails to reflect the additional incriminating circumstances which, the Reed court reaffirmed, Article 38.14 mandates in a "mere presence" or "mere occurrence" case such as this one. See Reed, 744 S.W.2d at 126-27. Although Humphries and Tabares apparently spoke to the appellant before entering the motel room, no one heard that conversation. Likewise, there is nothing to suggest that the conversation incriminates the appellant since the record indicates that the suitcase remained closed until it was opened inside the motel. Furthermore, no non-accomplice testimony suggests that appellant knew that the suitcase contained cocaine or that he even handled the suitcase. See Sewell v. State, 578 S.W.2d 131 (Tex.Crim. App.1979). Similarly, while the appellant "watched" Agent Allen as he looked from the third surveillance room, nothing in the record suggests that this "watching" was incriminating: he neither fled nor warned the others. Agent Allen's testimony reveals nothing suspicious about appellant's facial expression. Moreover, appellant again made no attempt to flee either when one of the co-conspirators left the hotel room temporarily or, unlike his co-defendant Tabares, when the arresting officers arrived at the scene. See Reed, 744 S.W.2d at 127 (noting absence of flight).
*411 In short, the non-accomplice evidence establishes only that appellant, a Colombian, although he was a passenger in a Suburban automobile which the accomplice witness drove to a motel where a drug deal was to occur and from which the accomplice removed a suitcase without opening it, sat in that car while delivery of over a kilo of cocaine occurred inside the motel, and did not attempt to flee when arresting officers arrived at the scene. Because the record contains no additional independently incriminating or suspicious circumstances, we hold that the combined cumulative effect of such evidence does not tend to link the appellant to the offense and therefore cannot suffice under Article 38.14 to sustain his conviction. We reach this conclusion based on the Reed court's having rejected the "more likely than not" standard while reaffirming the traditional rules applying Article 38.14. We also note that the court of criminal appeals has consistently demanded strict proof of the accused's participation in a delivery of a controlled substance case. See e.g., Daniels v. State, 754 S.W.2d 214 (Tex.Crim.App.1988) (reversing, on sufficiency of evidence grounds, conviction for constructive transfer of marijuana, based on failure to show appellant had direct or indirect control over the drug, or that he knew undercover agent would be the ultimate transferee).
Because we conclude there is insufficient evidence to corroborate the testimony of the accomplice witness Humphries, we reverse the judgment of the trial court and accordingly order entry of an order of acquittal. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 59 L. Ed. 2d 15 (1978); Gibbs v. State, 610 S.W.2d 489 Tex.Crim.App. [Panel Op.] 1980). In view of our disposition of appellant's challenge to the sufficiency of the evidence, we need not consider his second point of error.
ROBERTSON, Justice, dissenting.
The majority opinion holds that the evidence is insufficient to corroborate the accomplice witness, and, therefore orders an acquittal. I dissent because as a matter of law there is sufficient evidence, other than the testimony of the accomplice witness, that tends to connect appellant to the commission of the offense. This is all the law requires.
The Accomplice Testimony
John Walter Humphries is an accomplice witness as a matter of law. He along with appellant, Hernando Tabares (who was jointly tried with appellant, convicted and given the identical sentence of life imprisonment and a fine of $250,000 that appellant received) and Maria Fay Honey were all arrested on the facts giving rise to this offense. Approximately three weeks prior to his testimony against Moreno and Tabares Humphries had entered a plea of guilty, without an agreed recommendation before the court, to the charge of aggravated delivery of cocaine and requested a pre-sentence investigation. He had never been approached by any person "offering (him) any kind of deal or asking for (his) testimony" until three or four days before he actually testified. It was then that the prosecutor came to see him in jail and the prosecutor asked him if he would testify as a witness. In return for his testimony, the prosecutor agreed to recommend a sentence of eight years confinement for the offense of nonaggravated possession of cocaine.
Humphries testified that for the approximately six month period of time prior to April 24, 1987, he was selling cocaine which he obtained from appellant Moreno. He stated that he had known appellant for approximately a year, that he had purchased a quantity of drugs from appellant about ten to twelve times, and that he always secured the cocaine from Moreno's residence. He testified that Marla Faye Honey was a lifetime friend of his and lived in San Antonio. He stated that while he was in San Antonio on approximately April 20, 1987, he received a message to contact her. He did so and she stated she had a friend that would like to purchase a large quantity of cocaine. Humphries told her that he had the contact to provide it and would let her know. They had three or *412 four conversations and he then had a "message on my message machine" to call her, that he did so but she was not there and her roommate gave him a telephone number to call, which he did, and spoke to a "Glen." He stated that their conversation concerned the "availability" of cocaine and that he told Glen that he was "relatively sure that I could" provide it in "bulk quantity" at "eighty percent or better in quality." He stated that "Glen" asked whether he "could conduct that deal in San Antonio and he told him he could not because he only had one quantity supply connection in Houston and that "I didn't have the cash to buy it up front. So it would have to have been a front and usually they go with you in a front." During his conversation with "Glen" he stated that he had been dealing with two Colombians for seven or eight years and that he could almost speak Colombian. He further stated to "Glen" that the actual transfer of the cocaine would take place in adjoining rooms of a hotel where the rooms were connected by a door between the two rooms. He explained that "Glen" and "one of my people" will be in one room and he and one of the suppliers would be in the other room and the cocaine and the cash would be transferred through the connecting door. Humphries stated that he returned to Houston the next day and "the first thing I did" was contact appellant "through a beeper" at a number he had to contact appellant. He stated that when appellant returned his call, he told appellant that he needed two kilos, and that appellant told him "no problem" and they agreed on a price of $25,000 per kilo. The conversation concluded with Humphries telling appellant he would call him the next day and let him know when he needed it.
The next day Ms. Honey arrived in Houston and contacted Humphries about 4 or 4:30 p.m. and he told her to get with her purchaser and set up the hotel and let him know. Humphries then contacted appellant who told him there was a problem that he only had "half as much as what I wanted" because "it was sold overnight." After "Glen" and Ms. Honey got set up in a Holiday Inn Hotel, she called Humphries and informed him where to come. Humphries then went to appellant's house but had to wait with appellant and Tabares for some 30 minutes for the rest of the cocaine to arrive because it was not then at appellant's house. He testified that a person he did not know eventually brought the cocaine to appellant's house and that it was wrapped in light pink birthday gift wrapping and tied with a ribbon. The cocaine was then placed in a suitcase and the three of them left in Humphries' suburban with Humphries driving, appellant in the front passenger seat and Tabares in the rear.[1] When they arrived at the Holiday Inn he and Tabares got out of the suburban and as they approached the room, Ms. Honey "stuck her head out the door next door and looked at me and I went like this and she shut the door and [I] went into the room and shut the door behind me." He then knocked on the connecting door and Ms. Honey opened it and he asked her for the money. She stated "Glen" wanted "to test it first and make sure he's not getting ripped off." Humphries then put the package back into the briefcase and he and Tabares went back to the suburban to let appellant "know what was going on" because "I didn't have the money right there." Humphries stated that appellant said "let's get it over with" and Humphries went back in by himself, Tabares then remaining with appellant at the suburban. He stated that once back inside the room he opened up the briefcase, took out the package, unwrapped it and threw the gift wrapping paper on the floor and removed two packages. He put one of the packages back in the briefcase and took the other in his hand and knocked on the door to the adjoining room. He called Ms. Honey into his room and warned her of the Colombians' worry about something going wrong, but she assured him she had already "seen the money and everything is okay." He then handed her the package, she went back into her room, and he closed the door. *413 When nothing had happened for what "seemed like several minutes", he knocked on the door and about that time he heard "these cars pull up and doors open." Suddenly the door "broke open" and Marla Faye and Glen came into the room. Glen had his gun drawn and Humphries shouted at Glen and ducked down. Marla screamed and hit his hand and the gun went up and Humphries started to run at a low crouch. Evidently one of the other officers was opening the door at that time and Humphries ran into it, knocking the gun, which he had pulled from his pocket, from his hand and almost knocking Humphries out. All were then arrestedHumphries and Ms. Honey in the room, Tabares as he was attempting to flee, and appellant as he was still seated in the front seat of the suburban. The two packages of cocaine weighing 501.6 grams and 502.9 grams making a total of 1.0045 kilograms of 97.5 percent pure cocaine was recovered, along with Humphries' pistol, the briefcase and the gift wrapping paper.
Corroborating Evidence
There are actually four sources of corroborating evidence: (1) the presence of appellant at the scene of the offense and his actions there, (2) statements made to Agent Mize by co-conspirator Marla Faye Honey during the existence of and in furtherance of the conspiracy, (3) statements made to Agent Mize by co-conspirator John Walter Humphries during the existence of and in furtherance of the conspiracy, and (4) other circumstances occurring at the time of the arrest.
Statement of Marla Faye Honey
Glen Mize, an officer of the Department of Public Safety for fourteen years and assigned to conduct undercover investigations in narcotics traffic for the last four of those years, testified that he was requested by law enforcement authorities in Port Lavaca to assist them in a drug investigation. It was during this investigation that he met Marla Faye Honey and he purchased 5.5 grams of cocaine from her on March 25, 1987. He stated that in investigating the drug traffic it is always important, of course, to attempt to find the source or "go up the ladder." For this reason he inquired of Marla Faye Honey about larger purchases, and she told him she could "supply a kilo or kilo amounts and that she would obtain a price for me from her supplier." While she did not tell him the last name of her supplier, she told him his first name was John. She stated, however, that her supplier was going on vacation for several weeks and she could not then arrange for the large delivery but for him to get back in touch to set up "the kilo amount." He testified that he next called her on the telephone on April 21, 1987, and inquired about "the kilo", and she stated she could deliver two kilos and that her supplier was from Houston. He stated that he told Marla Faye that he wanted the delivery to be in San Antonio but Marla Faye told him her supplier was not able to obtain that amount "unless it was in Houston." Agent Mize testified that he insisted on talking to John directly "to discuss the arrangements on how we wanted the transaction to take place." She stated he was not then present and told him to call back. Mize called back later and Honey told him to "wait a moment" and "an individual who identified himself as John" answered the phone. (The conversation with John will be detailed under the succeeding section of statements made by John Walter Humphries to Agent Mize.)
The other statements made by Marla Faye Honey to Agent Mize which corroborate the accomplice witness testimony occurred while Mize and Honey were in the hotel room awaiting the delivery of the cocaine. Agent Mize testified that after he and Marla Faye Honey arrived at the hotel room, she called John and told him they were in the room and set up. However, when the delivery had not been made for some hour and a half or so, Honey again called at 9:54 p.m. and talked to someone (not John). After concluding the telephone conversation Honey then told him "John and the two Colombians should be arriving any minute." Within about six minutes he heard a vehicle pull up, Honey went to the "door or the curtain" and looked out, and *414 said "they are here." His testimony then details the events where he heard someone enter the next-door room; there was a knock on the door connecting the two rooms; Honey answered the knock; she spoke with John (calling his name), and came back asking for the money. Mize testified he told her he was not going to hand over the money "until I see the dope", that she returned to the connecting door and so informed the persons in the other room, that he then heard "opening and closing of a door." He stated that in a few minutes Honey returned to his room and handed him "the white plastic rectangular box with green outlining on it and she said "here's half of it and I will get the other half." (The remainder of his testimony concerns his cutting into the bag, informing Honey that it looked good to him "and I will call for the money." Actually the call he made was to the other agents to move in so the arrests could be made.)
Statements of John Walter Humphries
When Agent Mize called Honey the second time at her apartment in San Antonio (for the purpose of speaking directly to John) and Honey put John on the phone, Agent Mize testified that he talked to John for a couple of minutes about the delivery of two kilograms of cocaine. He stated John said he was from Houston and that the "product ... was in good quality and he had been dealing with the same two guys for a period of eight years to the point he could almost speak Colombian." He stated that John told him the cocaine would be "80 percent or better." When Mize asked him why the delivery could not be in San Antonio, John told him "he did his thing there (Houston) and he didn't know anyone in San Antonio." When asked what "thing in San Antonio" meant, the agent stated "he couldn't supply or obtain any cocaine in San Antonio of that quantity." He testified that John stated that delivery of the cocaine would take place in a "two-room deal" where Honey and Glen would be in one room and he (John) "and one of them" would be in the other room and by doing it that way Glen would not have to part with his money because the "money and the dope come through the adjoining door simultaneously." The only other testimony he gave concerning the issue of corroboration of the accomplice was that after the arrests were made a digital pager was found in the immediate vicinity of the suburban automobile and he identified a picture of it and its location where recovered. On cross-examination he testified that on appellant's application for a Texas driver's license he stated he was from Colombia.
Testimony of Donald Keith Allen
Allen, an investigator with the Department of Public Safety, was a member of the investigation team at the hotel. He was stationed in the third room, or the surveillance room. He testified that he observed the suburban driven by Humphries arrive in the parking lot and park facing their room. He testified appellant was in the front passenger seat and Tabares was in the rear. He stated Tabares and Humphries got out of the suburban and, while standing by the side of the suburban, they, or one of them, was having a conversation with appellant who remained in the suburban. Humphries and Tabares then walked toward the motel rooms, where Mize was, carrying a suitcase. He stated that "I noticed that Moreno (appellant) was watching me and I looked up and I saw him looking at me, looking out the window at them and I closed the curtains and stepped back from the window." He stated that he didn't look out anymore and that in about 10 or 15 minutes he got the signal from Mize "to come on over" and he advised the surveillance unit to take their positions for the arrest. This concludes the testimony that must be examined to determine whether there is sufficient corroboration of the accomplice.
Article 38.14 of the Tex.Code Crim.Proc. provides that 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." (emphasis supplied). The cases are legion that in order to test the sufficiency of the corroboration, the *415 testimony of the accomplice will be disregarded and the remainder of the evidence will be examined "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." Paulus v. State, 633 S.W.2d 827, 843 (Tex.Crim.App. 1981); (emphasis original); Reed v. State, 744 S.W.2d 112 (Tex.Crim.App.1988). Further well-established rules are set forth in Paulus: (1) all the facts and circumstances may be looked to in furnishing the corroboration necessary; (2) the corroborative evidence may be circumstantial or direct; (3) the combined cumulative weight of the incriminating evidence furnished by the nonaccomplice witnesses which tends to connect the accused with the commission of the offense supplies the test; (4) it is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt; (5) in applying the test of sufficiency of corroboration, each case must be considered on its own facts and circumstances, and (6) apparently insignificant circumstances sometimes afford most satisfactory evidence of guilt and corroboration of accomplice witness' testimony.
Rule 801(e)(2)(E), Tex.R.Crim.Ev. provides that statements made by a co-conspirator of a party during the course and in furtherance of the conspiracy are not hearsay. This rule merely adopted what had been the well-established law in Texas. See Lapp v. State, 519 S.W.2d 443, 446 (Tex. Crim.App.1975); Helms v. State, 493 S.W.2d 227, 230 (Tex.Crim.App.1973); Denny v. State, 558 S.W.2d 467, 469 (Tex.Crim.App. 1977), cert. den. 437 U.S. 911, 98 S. Ct. 3104, 57 L. Ed. 2d 1142. It is also well-established that a conspirator is criminally responsible for the acts of his co-conspirator which are committed in furtherance of the common design and follow incidentally as the natural and probable consequences of such design, even though he was not present when the acts were committed. Sapet v. State, 159 Tex. Crim. 620, 266 S.W.2d 154, 159 (1954). All statements made by a co-conspirator up until the time the object of the conspiracy is completed are admissible. Brown v. State, 576 S.W.2d 36, 41 (Tex.Crim.App.1979).
Finally, as to the weight to be given to the presence of an accused at the scene of the commission of an offense, the court of criminal appeals stated the rule succinctly in Graham v. State, 643 S.W.2d 920, 925 (Tex.Crim.App.1981): "Proof that an accused was at or near the scene of a crime at or near the time of its commission may tend to connect the accused with the crime so as to furnish sufficient corroboration [of an accomplice witness] to support a conviction."
Considering the evidence detailed above in the light most favorable to the jury verdict, which we must do (McGoldrick v. State, 682 S.W.2d 573, 577 (Tex.Crim.App. 1985)), and giving due regard to the principles of law visited above, I conclude that the evidence is abundantly sufficient to corroborate the accomplice witness. First, there is the testimony of Agent Mize of the statements of Marla Faye Honey made to him: (1) that her supplier was from Houston, and (2) that the transaction could not occur in San Antonio because her supplier could not obtain that amount unless the transfer occurred in Houston (this is cogent circumstantial evidence because at $25,000 to $30,000 per kilo for cocaine the only reasonable conclusion is that the supplier will not part with the cocaine until he has the money in hand); (3) the testimony of Agent Mize that while in the hotel room and after the cocaine had not arrived for some hour and a half, Honey made a telephone call in his presence and after talking to someone, told him "John and the two Colombians should be arriving any minute" and (4) the testimony of Mize that shortly thereafter he heard an automobile; Honey looked out and she said "they are here" (and in fact John Humphries, her supplier who could not supply a kilo amount in San Antonio, arrived with the two Colombians.)
Second, there is the testimony of Agent Mize of the statements of John Humphries made to him: (1) that he was from Houston where his supplier was from; (2) that he *416 could not deliver a kilo amount or more in San Antonio because he did not have the cash to buy it up front, that "he did his thing in Houston," that the transfer would have to occur in connecting hotel rooms so that there could be a simultaneous transfer of the cocaine and the money and that his supplier would accompany him at the time of the transfer; (3) that one of his suppliers would be in the room with him while the purchaser (the agent) would be in the connecting room with Honey; (4) that the cocaine would be 80 percent pure or better (this is strong circumstantial evidence to show Humphries' supplier was a major source for cocaine because of the high quality and the large amount available.)
Third the evidence that Humphries and Taberas, while outside the suburban, were observed talking to appellant who was seated inside the suburban. The jury was warranted in believing that Taberas and Humphries did in fact return to receive additional instructions from appellant after Mize insisted on testing the cocaine prior to releasing any money because to have released the cocaine would have been totally contrary to the directions given by Humphries as to the manner in which the transfer would occur. Fourth, the evidence shows that appellant was originally from Colombia. Fifth, the jury was warranted in believing that appellant was keeping a lookout while he remained in the suburban. Sixth, and while it is admittedly weak, the jury was entitled to consider, for what it was worth, the recovery of the digital pager on the ground near the suburban (Humphries testified he contacted appellant through the pager.) Finally with all this evidence in mind, there is the damning evidence of appellant's presence at the scene of the offense.
When all of this evidence, the circumstances and the reasonable inferences resulting therefrom are considered, I believe the evidence is definitely sufficient to corroborate the accomplice witness. Because the majority holds otherwise, I dissent.
NOTES
[1] Humphries explained how only he and Tabares were going to take the cocaine but after they got out to the car Tabares was nervous, told him to wait and that they went back inside appellant's house and it was then determined that appellant would also go on the trip.
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761 S.W.2d 120 (1988)
Pierce HENDON, Appellant,
v.
Herbie GLOVER and Stella Glover Mabry, Appellees.
No. 09-86-198 CV.
Court of Appeals of Texas, Beaumont.
November 10, 1988.
Rehearing Denied December 8, 1988.
Rehearing Denied December 12, 1988.
*121 Thomas O. Moses, Evans, Moses & Barkley, Beaumont, for appellant.
Ervin A. Apffel, Jr., Otto D. Hewitt, III, McLeod, Alexander, Powel & Apffel, Galveston, for appellees.
(Appellee's) Rehearing Denied December 8, 1988.
(Appellant's) Rehearing Denied December 12, 1988.
OPINION
DIES, Chief Justice.
In Jefferson County, Texas, Herbie Glover and Stella Glover Mabry, as plaintiffs, brought suit against Pierce Hendon, individually, "and as Trustee for certain others," alleging that the latter, on February 2, 1981, executed a real estate lien note for the principal amount of $90,000 payable to plaintiffs. They also alleged that by the terms of the note defendant (Hendon) was to pay to plaintiffs the sum of $3,000 on the first day of March, 1981, "and a like amount on the first day of each succeeding month until the entire principal balance of such note had been paid." Defendant made the first $3,000 payment due but no more. Plaintiffs sued for breach of contract, fraud, attorneys' fees, and interest (but not prejudgment interest).
The case was submitted to a jury which made the following answers:
1. That defendant Hendon breached the agreement with plaintiffs.
2. That plaintiffs suffered damages of $95,700 as a result of the breach.
3. That defendant committed actionable fraud.
4. But it was not intentionally committed.
5. That plaintiffs suffered damages of $53,000 for such actionable fraud.
6. Failed to find any exemplary damages.
7. Failed to find that plaintiffs represented that the McCullough lease was producing marketable oil when, in fact, it was not.
8. Failed to find that such representation was a producing cause of any damage to defendant Herndon.
9. Failed to find that the Glovers represented to Hendon that the Gilbert lease was producing marketable oil when, in fact, it was not.
10. That such was not the producing cause of any damage to Hendon.
11. That Hendon was entitled to no damages for the Gilbert lease or the McCullough lease.
12. That the Glovers did not knowingly engage in the conduct asked about in Issues 8 and 10.
13. Unanswered.
14. Failed to find that the Glovers breached the contract of sale by failing to produce and record a 75% assignment to the Gilbert lease *122 within thirty days from the execution of the contract of sale.
15. Unanswered.
16. That Hendon is entitled to a credit on the real estate lien note for the failure of the Glovers to procure and record a 75% net revenue interest on the Gilbert lease.
17. That the credit should be $25,000.
18. Failed to find Hendon was entitled to a credit of $50,000 for the "Roosterfish Interest."
19. Unanswered.
We apologize for lengthening this opinion by setting forth these jury findings, but we felt it was necessary to understand the contentions of the parties. And the issues themselves are often confusing. Some need not have been answered because of a previous answer, and in others the parties are incorrectly identified as "plaintiff" or "defendant." Much of this, no doubt, is due to the fact that there are two suits on file concerning these disputes, one in Hardin County and one in Jefferson County. In the Hardin County case, Hendon is plaintiff. In the Jefferson County case, the Glovers are plaintiffs. The attorneys for both sides agreed to try the first case reached for trial, which was the Jefferson County case, and which we now review.
On the verdict above set out, the trial court's judgment "concludes that judgment should be rendered against [Hendon] for the total sum of $203,651.58, representing the jury verdict of $148,700 less a credit of $25,000, plus an award of $79,951.51 in prejudgment interest." From this judgment, Hendon has appealed.
The parties will be referred to herein as the Glovers and Hendon.
The first point of error: "The trial court erred by awarding judgment for damages based upon fraud and breach of contract, because it amounted to a double recovery." We agree. In Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957), the Court said (307 S.W.2d at 238-239):
"[F]or it is well settled that one who is induced by fraud to enter into a contract has his choice of remedies. He may stand to the bargain and recover damages for the fraud, or he may rescind the contract, and return the thing bought and receive back what he paid." (citations omitted)
See also Talley v. Nalley, 277 S.W.2d 739, 740 (Tex.Civ.App.Waco 1955, writ ref'd n.r.e.):
"It is well settled that a party aggrieved by a fraudulent transaction has alternate remedies and may either rescind, or affirm the transaction and recover his damages. But he cannot do both; he cannot retain all the benefits of the transaction and escape all of the obligations...."
While the language of these cases does not exactly cover our situation, it does proclaim that an aggrieved party has but one remedy if that remedy makes him whole. Here, the Glovers were payee on a note, which itself provided the amount of interest and attorneys' fees. They did not sue to cancel the note and rescind the mineral leases. So, the additional damages for "actionable fraud" would be a double recovery, and not authorized under Texas cases. See Burroughs Corp. v. Farmers Dairies, 538 S.W.2d 809 (Tex.Civ.AppEl Paso 1976, writ ref'd n.r.e.); Jones v. Rainey, 168 S.W.2d 507 (Tex.Civ.App.Texarkana 1942, writ ref'd). This point of error is sustained.
Points two and three contend there is no evidence supporting damages of fraud against Hendon. The contention made is that Hendon never intended to pay the note when he signed it. The Glovers have pointed to no evidence to support this contention. In addition, Hendon paid them $10,000 cash in addition to the note involved and made the first payment of $3,000. These points of error are sustained.
Point of error number four: "The trial court erred by entering a judgment against Appellant without giving a credit or offset for $50,000 received by Appellees [Glovers] from the Roosterfish Interest."
Sometime in 1981, the Glovers heard there was a drilling rig on the Sternenberg and the Kirby leases. Glover did find a rig *123 on the land and ordered it removed. This is a portion of the property covered by the real estate lien note. Glover was paid $50,000 by the "Roosterfish Interest," which he explained, so that he (Glover) would not shut down NRG during their drilling activities. NRG was the entity that had employed the Big 6 rig that Glover ordered removed, but NRG intended to drill on other Glover land not covered in the Hendon sale. The jury in Issue No. 18 failed to find for Hendon concerning this $50,000, and the agreement between NRG and the Glovers reserved any claim they might have against Hendon. So, this was an agreement completely between the Glovers and NRG. Hendon was not a party to it. If NRG made a bad deal, it is for them to complain. There was no oil or gas extracted before the rig was moved. This point is overruled.
Point of error number five: "The trial court erred by entering judgment that improperly awarded prejudgment interest for attorneys' fees, or in the alternative, the trial court erred by improperly awarding double recovery for prejudgment interest." Prejudgment interest must be pleaded to be recoverable. Vidor Walgreen Pharmacy v. Fisher, 728 S.W.2d 353 (Tex. 1987). As noted above, it was not so pleaded here. Further, the note involved provided for 10% interest on the unpaid balance upon default, so Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985), does not apply. The note also provided for the amount of attorneys' fees payable. This point is sustained. This addresses point number six, and it is thus overruled.
Hendon has two other points which we find are without merit and they are overruled.
To recapitulate, we have found that the Glovers are due the amount now owed on the note ($87,000), attorneys' fees and interest provided in the note, minus the $25,000 credit found by the jury, and remand this cause to the trial court with instructions to so reform the judgment.
REVERSED AND REMANDED WITH INSTRUCTIONS.
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263 Pa. Super. 436 (1979)
398 A.2d 215
J.F. REALTY COMPANY, Appellant,
v.
Robert YERKES, Individually and t/a Boulevard Caterers.
Superior Court of Pennsylvania.
Argued December 7, 1977.
Decided February 16, 1979.
*438 C. George Milner, Philadelphia, for appellant.
Herbert Braker, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
The instant appeal is brought by appellant from an order of the lower court striking a confession of judgment entered against appellee. Appellant claims that the court erred in granting appellee's motion to strike. We agree and reverse the order of the court below.
The facts pertinent to this appeal are as follows. On July 1, 1976, appellant, J.F. Realty Co., and appellee, Robert Yerkes, entered into a lease contract whereby appellant agreed to lease to appellee the premises at 6595 Roosevelt Boulevard in Philadelphia. By means of a "rider" attached to the form lease, the parties agreed that appellee could assign the lease to any corporation in which he owned at least 51% of the stock. The lease also contained a standard "confession of judgment" clause authorizing appellant to confess judgment against appellee if appellee breached the rent covenant. Upon occupying the premises, Yerkes discovered that approximately one-half (½) of the total floor space of 40,000 square feet was unusable because of structural defects in the building. Appellee notified appellant of these defects, to no avail, and expended approximately $6,000 of his own funds in an effort to correct the defects.
On October 26, 1976, appellee Yerkes formed R.Y.S. Caterers, Incorporated, a corporation in which he owned 100% of the stock. On November 17, 1976, he assigned the lease on the Roosevelt Boulevard property to R.Y.S. Caterers, and notified appellant of the assignment on that date. Appellee had, however, ceased paying the rent on the *439 premises on November 1, 1976, and did not pay the monthly rental after that date. After various negotiations between the parties, appellant filed a complaint for confession of judgment against appellee on February 4, 1977, in the amount of $568,259.66, representing the rent for the unexpired term of the seven (7) year lease plus various charges. In the complaint, appellant alleged that appellee Yerkes had breached the rent covenant by failing to pay rent after November 1, 1977, and by failing to present proof of insurance coverage on the premises. Appellee subsequently filed a petition pursuant to Pa.R.C.P. No. 2959 to strike the confessed judgment,[1] alleging inter alia, that appellee was released from liability under the lease by virtue of his assignment of the lease to R.Y.S. Caterers, and that appellant was indebted to appellee on a counterclaim in the amount of $59,333.34. On or about March 25, 1977, appellant filed an answer denying the assertions in appellee's petition. On May 12, 1977, the court below entered an order striking the judgment previously entered on February 4, 1977.[2] As justification for its action, the court relied upon section (e) of Rule 2959 which states in part, "If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment." The court reasoned that issues existed as to whether appellee's assignment of the lease released him from liability, whether appellee had breached the rent covenant prior to the time he assigned the lease to R.Y.S. Caterers, Inc., and whether the assignment was fraudulent and unsupported by consideration. Appellant has appealed, alleging that the *440 court utilized an improper standard in granting appellee's motion to strike. We agree.
Initially, it should be noted that the standard employed in section (e) of Rule 2959 relates to a petition to open a judgment, while appellee's petition was one to strike the judgment. This distinction is critical for as has been stated,
"If the alleged defect in the confessed judgment is based on a matter dehors the record, the proper approach is to petition the court to open the judgment. On the other hand a motion to strike is proper only when the defect in the original judgment appears on the face of the record." Triangle Building Supplies and Lumber Co. v. Zerman, 242 Pa.Super. 315, 320, 363 A.2d 1287, 1289 (1976) (citations omitted).
Generally, such clearly established defects justifying a motion to strike arise when the judgment entered is for a grossly excessive amount or includes recovery for items that were not permitted in the contract authorizing a confession of judgment. See, e.g., Colony Federal Savings and Loan Assoc. v. Beaver Valley Engineering Supplies Co., 238 Pa.Super. 540, 361 A.2d 343 (1976); H.A. Steen Industries, Inc. v. Richer Communications, Inc., 226 Pa.Super. 219, 314 A.2d 319 (1973). In such cases, the defect in the judgment is easily ascertained "on the face of the record" by examining the confession of judgment clause in the contract. When, however, the petition is one to strike, "[t]he facts averred in the affidavit of default are to be taken as true and if the truth of the factual averments are disputed, the remedy is by a proceeding to open the judgment and not to strike." Northway Village No. 3, Inc. v. Northway Properties, Inc., 430 Pa. 499, 503, 244 A.2d 47, 49 (1968) (emphasis added).
Applying these principles to the instant proceeding, it is clear that the court below erred in striking the judgment based upon appellee's mere allegations of defenses to appellant's claim. Because appellee's petition to strike disputed appellant's factual averment of default, and because the *441 resolution of that dispute was impossible based upon the existing record and would have required the introduction of evidence dehors the record, appellee's petition to strike should have been denied. Indeed, the very finding by the court below that appellee's alleged defenses were not clearly established, but merely raised issues that would have required submission to a jury, precluded a finding in this case that the judgment was clearly defective "on the face of the record." While appellee's claimed defenses may be sufficient to sustain a petition to open under the less stringent standard of Rule 2959(e), his decision to limit his petition constrains the extent of review of the petition to strike. See, e.g., Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972); Florida Crab House, Inc. v. Hake, 259 Pa.Super. 230, 393 A.2d 801 (1978).
Accordingly, the order of the lower court is reversed, judgment is reinstated, and the case is remanded for proceedings consistent with this opinion.
CERCONE, President Judge, concurs in the result.
JACOBS and WATKINS, former President Judges, and HOFFMAN, J., did not participate in the consideration or decision of this case.
NOTES
[1] The record (R24a) discloses in fact that the pleading filed was labeled only "Petition" and that the prayer requested that "the judgment heretofore entered in this matter be set aside."
[2] The order of May 12, 1977, (R29a) concludes ". . . is directed to be stricken from the record." The opinion of the court below, entered July 7, 1977, (R30a-35a) is in the same language, i.e. ". . . is directed to be stricken from the record." We also note that the order (R29a) was obviously prepared by counsel for appellee, since it bears the printed name, attorney's number and address of counsel.
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761 S.W.2d 42 (1988)
The STATE of Texas, Appellant,
v.
Pamela Board DANIELS, Appellee.
No. 3-88-113-CR.
Court of Appeals of Texas, Austin.
October 12, 1988.
Rehearing Denied December 7, 1988.
Discretionary Review Refused March 8, 1989.
*43 Bill Reimer, Co. Atty., New Braunfels, for appellant.
Mark E. Cusack, San Marcos, for appellee.
Before SHANNON, C.J., and CARROLL, J.
PER CURIAM.
The State appeals from an order of the county court at law granting appellee's motion for new trial. Tex.Code Cr.P.Ann. art. 44.01(a)(3) (Supp.1988). Appellee timely filed her motion for new trial after the trial court found her guilty of resisting arrest and assessed punishment at incarceration for three days and a $350 fine. Tex.Pen. Code Ann. § 38.03 (1974).
The motion for new trial was granted, without a hearing, the same day it was filed, May 3, 1988. At a hearing "to clarify the record" held after the motion was granted, the trial court stated that "the Court mistakenly assumed that the Motion had been filed on April the 29th" and that "both parties agree the State would not *44 have had adequate time to controvert the motion." The testimony at this hearing also reflects that defense counsel did not hand deliver a copy of the motion for new trial to the county attorney as stated in the certificate of service attached to the motion. Instead, he gave an extra copy of the motion to the court clerk and asked her to deliver it to the county attorney. It is unclear whether the State had seen the motion before it was granted.
The county court at law had jurisdiction to grant the motion for new trial in this cause, and any misconception the court might have had as to the adequacy of notice to the State or the reason for the State's failure to respond would not have justified the county court at law setting aside its order. Moore v. State, 749 S.W.2d 54 (Tex.Cr.App.1988). Until recently, this would have settled the matter in appellee's favor, since lack of trial court jurisdiction was the only basis by which an appellate court could set aside an order of the lower court granting a new trial to a criminal defendant. Reed v. State, 516 S.W.2d 680, 682 (Tex.Cr.App.1974). However, the State now has a limited right to appeal, Tex. Const. Ann. art. V, § 26 (Supp.1988), and art. 44.01 expressly authorizes appeals of orders granting the defendant a new trial. Thus, we consider this cause to be properly before this Court. In reviewing the trial court's action, we will be guided by the principle that a motion for a new trial is directed to the discretion of the trial court, and an appellate court is not justified in reversing the lower court's decision absent an abuse of that discretion. See 25 Tex. Jur.3d Criminal Law § 3570 (1983).
The State initially contends that the motion for new trial should not have been granted because it did not state a proper ground. The motion first alleged that a new trial should be granted because the trial court
fail[ed] to grant Defendant's Motion to Dismiss made during the trial regarding the issue of whether Defendant did in fact know that an arrest was being attempted or made, and/or in determining that the alleged resistance occurred during the arrest when in fact such resistance, if any, occurred after said arrest.
Second, appellee contended in her motion that
[t]he verdict is contrary to the law and evidence presented in this case for the reasons that there is a fatal variance between the information and the proof in that the information charges the Defendant with resisting arrest and the evidence proves that the Defendant is guilty, if anything, of failure to display a driver's license to a police officer.
These allegations clearly assert that the verdict is contrary to the evidence, one of the recognized reasons for granting a new trial. Tex.R.App.P.Ann. 30(b)(9) (Supp. 1988). The point of error is overruled.
The State next complains that it was not given the opportunity to controvert the motion contemplated by Rule 31(b). However, while Rule 31(b) authorizes the State to take issue in writing with the truth of the matters stated in a motion for new trial, such written response by the State is not required. Rios v. State, 510 S.W.2d 326, 329 (Tex.Cr.App.1974). The trial court did not abuse its discretion by ruling on the motion for new trial without first allowing the State to respond.
The State further urges that the motion for new trial should not have been granted because it was not supported by affidavits and because, since no hearing was held, appellee offered no evidence in support of the motion. The matters relied on to support the motion for new trial were reflected by the trial record. Therefore, it was unnecessary that the motion be supported by affidavits. Bearden v. State, 648 S.W.2d 688, 690 (Tex.Cr.App.1983). Similarly, because the allegations in the motion for new trial could be determined from the trial record, it was not error for the trial court to rule on the motion without conducting a hearing. Darrington v. State, 623 S.W.2d 414, 416 (Tex.Cr.App. 1981). Compare McIntire v. State, 698 S.W.2d 652 (Tex.Cr.App.1985). Again, no abuse of discretion is shown, and these points of error are overruled.
*45 As can be seen from reading appellee's grounds for new trial, the motion was essentially a challenge to the sufficiency of the evidence to sustain the verdict of guilt. In its final argument, the State urges that the trial court erred in granting appellee a new trial because the evidence is sufficient to establish her guilt. To pass on this contention, this Court must determine the scope of the trial court's discretion when the sufficiency of the evidence is challenged in a motion for new trial. May the trial court reweigh the evidence and make its own determination of the witnesses' credibility, or must it sustain the verdict if there is any evidence to support it?
In Rhodes v. State, 427 S.W.2d 889, 892 (Tex.Cr.App.1968), the court wrote that when the sufficiency of the evidence is questioned in a motion for new trial, "[t]he verdict of the jury based on conflicting evidence will not be disturbed if there is sufficient testimony to sustain it." In Morris v. State, 411 S.W.2d 730, 733 (Tex.Cr. App.1967), the court held that the trial court had not erred in overruling the defendant's motion for an instructed verdict of acquittal in which it was alleged that "the overwhelming weight of the credible evidence" supported a verdict of not guilty, observing that "[t]he jurors are the exclusive judges of the credibility of the witnesses and the weight of the testimony." More recently, it has been stated that in ruling on a motion for new trial challenging the sufficiency of the evidence, the trial court is not to consider whether it believes or disbelieves any witness, but is merely to determine whether, looking at the evidence in a light most favorable to the verdict, there is any evidence which the trier of fact could have believed in arriving at its verdict. Chase v. State, 573 S.W.2d 247, 249 fn. 1 (Tex.Cr.App.1978). This view is also implicit in Moore v. State, supra at 58, where the Court of Criminal Appeals held that "once the trial judge grants a motion for new trial based solely on insufficiency of the evidence, the only further action permitted by the Double Jeopardy Clause is the entry of a judgment of acquittal."[1]
From these authorities, this Court concludes that a motion for new trial based on insufficiency of the evidence presents a legal rather than a factual question, and the trial court must apply the same legal test employed on appeal. That is, the trial court must decide, after viewing the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Cr.App.1983) (opinion on rehearing). If the evidence meets this standard, it is an abuse of discretion for the trial court to grant the motion for new trial.
The State's evidence in this cause consists of the testimony of two New Braunfels police officers. According to their testimony, appellee became belligerent after being stopped for driving a car with expired license plates. One of the officers, Jeffery Jamison, testified that appellee repeatedly refused his request that she produce her driver's license, even after he advised her that "I just wanted to write her a ticket, let her be on her way, for expired license plates, and that if she did not allow me to do that she was subjecting herself to a custody arrest and having to post bond for the traffic violation."
Sensing that the situation was getting out of hand, Jamison called for assistance and three officers responded by driving to the scene. After the other officers arrived, and after appellee again refused to produce her driver's license, Jamison advised appellee that she was under arrest and attempted to place handcuffs on her. Appellee began to swing her arms and kick at the officers, and had to be physically restrained. Appellee's resistance continued even after she was handcuffed, as she braced herself against the side of patrol car in an effort to avoid being placed in the back seat.
Appellee testified on her own behalf. She denied refusing to produce her driver's license, stated that she was never advised that she was under arrest, and denied physically *46 resisting the officers. According to appellee, the only action she took that could be interpreted as resistance was to pull back her wrist when the officer "sneaked up behind me" and attempted to handcuff her.
The county court at law, as trier of fact, was free to believe appellee's testimony and disbelieve that of the police officers. Had it done so and entered a verdict of not guilty, this cause would have been at an end. However, the trial court apparently believed the testimony of the officers, at least at the time it was offered, because it entered a verdict of guilt. When later presented appellee's motion for new trial challenging the sufficiency of the evidence to sustain this verdict, the trial court was no longer acting as trier of fact and thus was no longer free to weigh the evidence and judge the credibility of the witnesses. Instead, it was obligated to view the evidence in the light most favorable to the guilty verdict. Chase v. State, supra; Rhodes v. State, supra. Because the testimony of the police officers is sufficient to establish beyond a reasonable doubt each element of the offense, the county court at law abused its discretion by granting the motion for new trial.
The order granting appellee's motion for new trial is vacated, and the cause is remanded to the county court at law for entry of a judgment of conviction in accord with the verdict.
NOTES
[1] The new trial in Moore was granted before the ex.App.Austin 1988) State was given the right to appeal.
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115 F.2d 61 (1940)
ATLAS MILLING CO.
v.
JONES, Collector of Internal Revenue.
No. 2053.
Circuit Court of Appeals, Tenth Circuit.
June 5, 1940.
On Rehearing October 14, 1940.
*62 Paul E. Bradley, of Joplin, Mo. (Chas. M. Grayston, of Joplin, Mo., on the brief), for appellant.
Louise Foster, Sp. Asst. to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to the Atty. Gen., on the brief), for appellee.
Tom F. Carey, Jr., aud Martha Lynne Carey, amici curiae.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
During the years 1917 to 1925, inclusive, the St. Louis Smelting and Refining Company carried on lead and zinc mining operations on a tract of land in Ottawa County, Oklahoma. The St. Louis Company carried on underground mining, brought mineral-bearing rock to the surface, crushed it to approximately one-half inch in size, and then ran it over gravity concentration machines which separated the lead and zinc concentrates from the rock. The residue, known as tailings, aggregating approximately three-quarter of a million tons, was deposited on the land. After the St. Louis Company ceased its operations, an oil flotation process was perfected, through the use of which it was possible to remill and retreat the tailings and recover additional mineral values therefrom at a profit.
On July 5, 1933, Kansas Explorations, Inc.,[1] the owner of a life estate in the land and the tailings deposited thereon, entered into a contract with the Atlas Milling Company,[2] under which the latter was given the right to enter upon the land and rerun, reclean, and retreat the tailings deposited thereon. The contract provided that payments for concentrates recovered by Atlas from the tailings should be paid to Kansas and that it should pay 75 per cent thereof to Atlas and retain the remaining 25 per cent as rent or royalty.
On July 28, 1933, Atlas entered into a contract with Paul D. Dardenne, owner of the remainder interest in the land, by which Atlas was given the right to remill the tailings. It reserved a royalty to Dardenne of five per cent of the amounts received for concentrates recovered and sold.
During the taxable year 1933, Atlas received from the sale of concentrates recovered from the tailings the sum of $43,579.84, out of which it paid royalties *63 amounting to $10,782.18, leaving net to it $32,797.66. In its income tax return for the year 1933, Atlas claimed a depletion allowance on the basis of 15 per cent of $32,797.66, limited to 50 per cent of its net income of $2,124.11, resulting in a depletion deduction of $1,062.06. Atlas reported and paid as income tax for the year 1933 the sum of $146.03 and reported that there was no excess profits tax. The Commissioner allowed $421.08 for depletion of the lease, denied the balance of the claim for depletion and proposed a deficiency assessment of $596.89. Atlas paid under protest, the assessment, which, together with interest and penalties, aggregated $666.81, and filed a claim for refund of $390.83. The claim for refund was denied and Atlas brought this suit to recover the amount claimed. From a judgment for the Collector, Atlas has appealed.
The sole issue presented is whether Atlas is entitled to a depletion allowance under § 23 of the Revenue Act of 1932, 47 Stat. 169, 181, 26 U.S.C.A.Int.Rev.Code, § 23 (m), which in part reads:
"In computing net income there shall be allowed as deductions: * * *
"(l) Depletion. In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, * * *."
An allowance for depletion on account of exhaustion of a mine is an act of grace. It is allowable only where Congress has made provision therefor. One who claims it must bring himself within the provisions of § 23, supra.[3]
A "mine" is an excavation in the earth from which ores, coal, or other mineral substances are removed by digging or other mining methods. In its broader sense it denotes the vein, lode, or deposit of minerals.[4] Mining connotes the removal of minerals from a natural deposit. It does not embrace the re-working of mineral dumps artificially deposited from the residue remaining after the ore has been milled and concentrates removed therefrom. South Utah Mines & Smelters v. Beaver County, 262 U.S. 325, 332, 43 S. Ct. 577, 579, 67 L. Ed. 1004. In the case last cited the court said:
"The tailings, severed and removed from the mining claims, changed in character, placed on other and separate lands and having an ascertained and adjudicated value of their own, in our opinion, constituted a unit of property entirely apart from the mine from which they had been taken. See Forbes v. Gracey, 94 U.S. 762, 765, 24 L. Ed. 313."
Ores when severed from their natural deposit become personal property.[5] Trover and conversion will lie for their wrongful taking.[6]
While tailings deposited on the surface of land may become appurtenant to the land,[7] they in no true sense become a mine.
We are of the opinion that the word "mines" as used in § 23, supra, is limited to natural deposits and does not include a tailings dump deposited on the surface of land, consisting of the residue of ore that has been severed and milled.
It follows that Atlas was not entitled to a depletion allowance under § 23, supra.
The judgment is affirmed.
*64 On Rehearing.
In its petition for rehearing, the Atlas Milling Company[1] contends that in our former opinion we placed too narrow a construction upon the phrase, "mines, oil and gas wells, other natural deposits" in § 23(l) of the Revenue Act of 1932, 26 U. S.C.A. Int.Rev.Code, § 23(m), and cite in support of its contention Herring v. Commissioner, 293 U.S. 322, 55 S. Ct. 179, 79 L. Ed. 389.
The provisions for depletion found in the Revenue Acts since 1913 recognize that mineral deposits are wasting assets and that the taxpayer must look to the income derived therefrom for a return of his capital investment. They are intended to compensate the owner of any economic interest in the minerals in place, for the loss of capital resulting from the exhaustion of the minerals. United States v. Ludey, 274 U.S. 295, 302, 47 S. Ct. 608, 71 L. Ed. 1054; Palmer v. Bender, 287 U.S. 551, 556, 557, 53 S. Ct. 225, 77 L. Ed. 489.
During the years 1917 to 1925, inclusive, the minerals were severed, carried to the surface and all of the mineral content recoverable under known process was extracted from the minerals. The residue, consisting of tailings, was deposited on the surface. The minerals in place during those years were owned by the St. Louis Smelting & Refining Company and the landowner. Atlas did not then and does not now have any interest in the mine from which the minerals were extracted. The depletion of the mine took place when the minerals were severed during the years 1917 to 1925, inclusive, and the resulting loss of capital was suffered by the landowner and the lessee and not by Atlas. We are not here concerned with whether the life tenant or remainderman is entitled to a depletion allowance, nor whether, if the St. Louis Smelting & Refining Company had retained its interest in the tailings and had recovered the mineral content in the taxable year 1933, it would have been entitled to a depletion allowance. The question presented is whether, after minerals have been severed, removed from a mine and treated, leaving a residue of tailings, and a third person owning no economic interest in the mine from which the minerals were taken enters into a contract to process the tailings and to pay the life tenant a specified royalty out of the mineral values recovered for the right so to do, such third person, when he recovers mineral values from the tailings, suffers an exhaustion of a mine for which he may claim depletion.
We think the case is clearly distinguishable from Herring v. Commissioner, supra. In that case there was no question but that the taxpayers had an economic interest in oil and gas in place. They were the owners of a one-half interest in the land. The sole question was whether they were entitled to a depletion allowance in the year in which they received advance royalties or bonuses when no oil well had been drilled and no oil or gas had been extracted in that year. They received advance royalty out of which, under the statute, they could only obtain an allowance for depletion of the oil and gas they would suffer in the future. Here, Atlas owns no economic interest in the mine from which the minerals were severed. To entitle it to depletion we would have to hold that the tailings, not a natural deposit but ore-bearing rock artificially deposited on the surface of the ground, constitutes a mine within the meaning of § 23, supra. We are of the opinion that it may not be so regarded. The Commissioner made an allowance to Atlas for depreciation on its mill and equipment and for amortization of the costs of its lease. This clearly covers all the exhaustion of capital assets which it suffered and we adhere to the conclusion reached in our former opinion that the Commissioner rightfully denied a depletion allowance.
NOTES
[1] Hereinafter referred to as Kansas.
[2] Hereinafter referred to as Atlas.
[3] Helvering v. Mountain Producers Corporation, 303 U.S. 376, 381, 382, 58 S. Ct. 623, 82 L. Ed. 907; Security-First Nat. Bank of Los Angeles v. Welch, 9 Cir., 92 F.2d 357, 359.
[4] Webster's New International Dictionary, 2d Ed., p. 1563;
2 Bouv. Law Dict., Rawle's Third Revision, p. 2214;
Lindley on Mines, 3d Ed., Vol. 1, §§ 88, 89;
Marvel v. Merritt, 116 U.S. 11, 12, 6 S. Ct. 207, 29 L. Ed. 550;
Northern Pac. R. Co. v. Mjelde, 48 Mont. 287, 137 P. 386, 389;
J. M. Guffey Petroleum Co. v. Murrel, 127 La. 466, 53 So. 705, 711;
Sloss-Sheffield Steel & Iron Co. v. Bearden, 199 Ala. 132, 74 So. 230, 231.
[5] Forbes v. Gracey, 94 U.S. 762, 765, 766, 24 L. Ed. 313;
South Utah Mines & Smelters v. Beaver County, 262 U.S. 325, 332, 43 S. Ct. 577, 67 L. Ed. 1004.
Cf. Manson v. Dayton, 8 Cir., 153 F. 258, 263.
[6] Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S. 428, 434, 12 S. Ct. 877, 36 L. Ed. 762;
Omaha & Grant S. & R. Co. v. Tabor, 13 Colo. 41, 21 P. 925, 930, 5 L.R.A. 236, 16 Am. St. Rep. 185;
Hartford Iron Min. Co. v. Cambria Min. Co., 93 Mich. 90, 53 N.W. 4, 32 Am. St. Rep. 488;
Ivy Coal & Coke Co. v. Alabama Coal & Coke Co., 135 Ala. 579, 33 So. 547, 93 Am. St. Rep. 46.
[7] Manson v. Dayton, supra.
[1] Hereinafter referred to as Atlas.
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534 F. Supp. 2d 1001 (2008)
SOUTHERN WINE & SPIRITS, OF AMERICA, INC., a Florida Corporation; Southern Wine & Spirits of Nebraska, Inc., a Florida Corporation; Harvey R. Chaplin; Wayne E. Chaplin; and Steven R. Becker, Plaintiffs,
v.
David HEINEMAN, in his official capacity as Governor of the State of Nebraska; Jon Bruning, in his official capacity as Attorney General of the State of Nebraska; Nebraska Liquor Control Commission; and Robert Logsdon, Pat Thomas, and Rhonda Flower, in their official capacities as members of the Nebraska Liquor Control Commission, Defendants.
No. 4:07CV3244.
United States District Court, D. Nebraska.
February 14, 2008.
Angela Probasco, Kathryn E. Jones, Thomas J. Kenny, Kutak Rock LLP, Omaha, NE, Norman M. Krivosha, Naples, FL, for Plaintiffs.
Jodi M. Fenner, Nebraska Department of Health and Human Services, L. Jay Bartel, Milissa D. Johnson-Wiles, Attorney General's Office, Lincoln, NE, for Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, District Judge.
The plaintiffs sued Nebraska officials and the Liquor Control Commission contending that a recent license law passed by *1002 the legislature is unconstitutional. After initially defending the law, the defendants reconsidered and now formally concede that a portion of the new law, the "Grandfather Clause," is unconstitutional. Consequently, the focal point of the fight has shifted. As I see it, the sole remaining dispute is whether I can sever the offending clause from the remainder of the legislation. If severance is not possible, the plaintiffs win and there is no reason to consider the other grounds for their suit.
Because I agree with the plaintiffs that the "Grandfather Clause" induced passage of the entirety of the challenged legislation, the offending portion of the law is not severable from the portion that may be unobjectionable.[1] As a result, I will grant the plaintiffs' motion for partial summary judgment, deny the defendants' cross-motion and I will enjoin enforcement of the entirety of the statute. I will also dismiss the other grounds for relief advanced by the plaintiffs because I should avoid unnecessary adjudications (constitutional or otherwise). My reasons for this decision are set forth below.
I. BACKGROUND
Cross-motions for summary judgment frequently signal that both sides agree on one thing and that is, there is no reason for a trial. While there is some slight disagreement on insignificant matters, I believe the parties agree that there are no material facts that are genuinely disputed.[2] Taken primarily from the parties' admissions of each other's statement of facts, as supplemented by my independent review of the summary judgment record,[3] and greatly simplified for clarity, I find the following to be the critical undisputed facts.[4]
1. Plaintiff Southern Wine & Spirits of America, Inc. ("Southern") is a Florida corporation authorized to do business in Nebraska. Plaintiff Southern Wine & Spirits of Nebraska ("Southern Nebraska"), a Florida corporation, is a wholly-owned subsidiary of Southern. Plaintiffs Harvey R. Chaplin, Wayne E. Chaplin, and Steven R. Becker are shareholders and directors or officers of Southern and are residents of Florida. They are also directors *1003 of Southern Nebraska. (Compare filing 1 ¶¶ 1-5 (complaint) with filing 46 ¶¶ 1-5 (answer) and with filing 32 ¶¶ 1-4 (defendants' statement of material facts).)
2. The caption and the complaint accurately describe the defendants' official functions and each of the defendants have some authority to enforce thy provisions of Nebraska's liquor laws. (Compare filing 1 ¶¶ 6-10 with filing 46 ¶¶ 6-10.)
3. Prior to 1987, the Nebraska Liquor Control Commission ("Commission") la, sued Southern (the parent corporation) a Class S license, which pursuant to Neb. Rev.Stat. § 53-123.15(2), may only be issued to a "manufacturer." (Compare filing 32 ¶ 4 with filing 41 ¶ 16 (plaintiffs' statement of material facts) and with filing 50 ¶ 16 (defendants' response to additional material facts).) Southern sometimes operates under the trade name Shaw Ross International. Importers and was thus treated by Nebraska as a "manufacturer" because it imported alcohol into the United States manufactured by others outside of the United States. (Compare filing 41 ¶ 16 with filing 50 ¶ 16.)
4. On November 22, 2006, Southern Nebraska (the subsidiary) submitted its Class X liquor license application to the Commission, which was accepted for consideration on January 24, 2007. (Compare filing 32 ¶ 5 with filing 41 ¶ 5.)
5. Prior to September, 1, 2007, Neb. Rev.Stat. § 53-169.01 provided that:
No manufacturer of alcoholic liquor holding a manufacturer's license under section 53-123.01 and no manufacturer of alcoholic liquor outside this state manufacturing alcoholic liquor, except beer, for distribution and sale within this state shall, directly, or indirectly, . . . be interested in the ownership conduct, operation, or Management of any alcoholic liquor wholesaler holding an alcoholic liquor wholesale license, except beer, under section 53-123.02.
Neb.Rev.Stat. § 53-169.01 (Reissue 2004) (Emphasis added).[5]
6. In the spring of 2007, the Nebraska Legislature amended Neb.Rev.Stat. § 53-169.01 to strike and add the following language:
No manufacturer of alcoholic liquor holding a manufacturer's license under section 53-123.01 and no manufacturer of alcoholic liquor outside this state manufacturing alcoholic liquor, except beer, for distribution and sale within this state[6] shall, directly or indirectly, . . . be interested in the ownership, conduct, operation, or management of any alcoholic liquor wholesaler holding an alcoholic liquor wholesaler license, except beer, under section 53-123.02 unless such interest in the licensed wholesaler was acquired or became effective prior to January 1, 2007. *1004 LB 578 (2007), available at Westlaw NE LEGIS 578 (2007). (Amendments shown by "strikeout" and "bold" font).
7. Senator Vickie McDonald was the only sponsor of the legislation. During her May 9, 2007 address to the Nebraska Legislature, Senator McDonald described the intent of her amendment (known as AM 892). In pertinent part, she stated:
The point is to stop manufacturers from setting up as wholesalers in Nebraska and aggressively pushing their own products. The intent is not to affect current license holders. . . . In this section, by deleting the words "for distribution and sale within the state," it clarifies that a manufacturer outside Nebraska may not wholesale in Nebraska at all. Under the current language, such manufacturer may wholesale in Nebraska if it doesn't manufacture what it distributes here. We want to make it clear that if you are a manufacturer you may not wholesale in Nebraska. Since we are making this clarification and with the growth of consolidated shipping house, we decided to put an effective date that would preserve the licenses of those that . . . have already obtained a license and make it clear that this is the law now and there's no opportunity for an applicant[7] who is interested in dabbling in both areas to do so. Thank you.
(Filing 33-2 at CM/ECF pages 18-19.) (Emphasis added.) No other significant discussion took place and the amendment was adopted without debate. (Compare filing 41 ¶¶ 18, 20, 22 with filing 50 ¶¶ 18, 20, 22.) On May 18, 2007, the law was formally enacted by the legislature, the Governor subsequently signed the law, and it became effective September 1, 2007. (Compare filing 41 ¶¶ 24-26 with filing 50 ¶¶ 24-26.) There is no other material legislative history. The amendment did not contain a severability clause.
8. The Commission issued Southern Nebraska (the subsidiary) an "Order to Show Cause" why the application for a Class X wholesale license should be approved in light of the potential violation of Neb.Rev.Stat. 53-169.01 caused by Southern's (the parent corporation's) possession of a Class S license. (Compare filing 32 ¶ 8 with filing 41 ¶ 8.) The Commission held a hearing on the matter on May 22, 2007. (Id.)
9. On July 20, 2007, the Commission approved the application of Southern Nebraska (the subsidiary) for a Class X license, subject to several conditions including the surrender of Southern's (the parent corporation's) Class S license. (Compare filing 32 ¶ 9 with filing 41 ¶ 9.)
10. The Commission's approval noted that Southern Nebraska's (the subsidiary's) Class X wholesale license could be subject to review when LB 578 became effective. (Compare filing 32 ¶ 10 with filing 41 ¶ 10.)
11. On August 22, 2007, after the conditions had been met, the Commission issued Southern Nebraska (the subsidiary) a wholesale, or Class X, liquor license pursuant to Neb.Rev.Stat. § 53-169.01. (Compare filing 32 ¶ 11 with filing 41 ¶ 11.)
12. Southern Nebraska (the subsidiary) currently possesses a valid Class X license permitting it to operate as a liquor wholesaler in the State of Nebraska. (Compare filing 32 ¶ 12 with filing 41 ¶ 12.)
13. On or about October 4, 2007, the Commission ordered a show cause hearing, pursuant to Neb.Rev.Stat. § 53-1,104, regarding whether Southern Nebraska (the *1005 subsidiary) is currently in compliance with Neb.Rev.Stat. § 53-169.01 as amended by LB 578. (Compare filing 32 ¶ 13 with filing 41 ¶ 13.) Under the law as amended, the Commission threatens to revoke Southern Nebraska's (the subsidiary's) Class X license because it is owned by Southern (the parent).[8]
14. On October 8, 2007, the plaintiffs sued the defendants. They sought injunctive and declaratory relief and attorney fees but not damages. In their complaint, the plaintiffs alleged, among many other things, the following:
A. Federal question jurisdiction was asserted and the action was commenced pursuant to 42 U.S.C. § 1983 to address violations of the plaintiffs' rights to engage in interstate commerce. (Filing 1 ¶ 11.)
B. The "Grandfather Clause" was added to the legislation at the request of the Nebraska Wholesale Liquor Distributors Association which is composed of three liquor wholesalers holding Class X licenses issued prior to January 1, 2007. (Filing 1 ¶ 36.)
C. In Count Two, it was claimed that the Nebraska law, as amended by LB 578, was unconstitutional in that the "Grandfather Clause" violated the Equal Protection Clause of the Constitution because, among other things, the two classes established by the clause bear no rational relationship to any legitimate government interest and because the clause arbitrarily discriminates against those parties that did not have an interest in a wholesaler prior to January 1, 2007. (Filing 1 ¶¶ 79, 80.)
D. In Count Four, it was claimed that the Nebraska law, as amended by LB 578, was unconstitutional in that the "Grandfather Clause" violated the Privileges and Immunities Clause of the Constitution[9] because, among other things, it practically precluded out-of-state residents from falling within the exception and because it effectively granted privileges to Nebraska residents that are not available to out-of-state residents. (Filing 1 ¶¶ 96, 98.)
15. Because of the pending "show cause" hearing before the Commission, the plaintiffs sought and were granted a temporary restraining order that was allowed to remain in effect pending final resolution of this case. At the hearing on the temporary restraining order on October 16, 2007, the Executive Director of the. Commission spoke. Among other things, he stated that Neb.Rev.Stat. § 53-169.01 "goes to owner, ship and operation, not agency." (Filing 42-4 at CM/ECF page 27.) In that regard, he stated:
THE COURT: Now, hold it, though, before you go back. So if Finochiaro's[10]*1006 now got a Class X license that is grandfathered, there is nothing in Nebraska law that prohibits Finochiaro from going out and becoming an agent of a manufacturer, right?
EXECUTIVE DIRECTOR: I think there would be, because the interest had to be acquired prior to January 1st, 2007.
THE COURT: No, no, no. We aren't talking about we aren't talking about the Class X license. They're not going to change they're not going to change their Class X license, they're simply going to go out and associate with a manufacturer. There's nothing to preclude them in the statute from doing that; isn't that right?
EXECUTIVE DIRECTOR: I believe you are correct, sir.
(Filing 42-4 at CM/ECF page 25.) (Partial transcript prepared by Plaintiffs.) The Executive Director also confirmed that prior to the adoption of the amendment he was consulted by an aide to Senator McDonald. The consultation dealt with that part of the amendment striking the words "for distribution and sale within this state." But the Executive Director stated that he was not consulted about the "Grandfather Clause." (Filing 42-4 at CM/ECF page 28.) He did not know why the "Grandfather Clause" was used.
16. In an answer filed on December 21, 2007, the defendants "conceded" that "the Grandfather Clause is unconstitutional either under the Equal Protection Clause or Privileges and Immunities Clause of the United States Constitution. . . ." (Filing 46 ¶¶ 78-83 and ¶¶ 92-101.) The defendants have never stated the reason or reasons for their concession. However, at the hearing on the application for a temporary restraining order, the Executive Director of the Commission, a former Assistant Nebraska Attorney General, candidly estimated that 90 percent of the current market was controlled by Class X liquor license holders who had received their licenses prior to January 1, 2007 and who were domiciled in Nebraska.[11] (Filing 17 (digital audio file, beginning at 5:22 (as measured by a timing device in Windows Media Player)).[12] Furthermore, the Executive Director also stated that several of these "grandfathered" Class X license holders had relationships of some type with large manufacturers, although he did not believe that those were prohibited relationships. (Filing 17 (digital audio file, beginning at 36:32) stating that "Finocchiaro's biggest account is Gallo Wines."))
17. The answer, including the concession of unconstitutionality, has never been withdrawn.
18. On January 2, 2008, the defendants submitted an affidavit of the Executive Director. (Filing 51-3, supplemental Ex. 1-A.) In that affidavit, the Executive Director stated that he "misspoke" when he answered "I believe you are correct, sir" regarding whether there was anything in the amended statute precluding a "grandfathered" Class X license holder from associating with a manufacturer after January 1, 2007. (Id. at CM/ECF page 2 ¶ 4.) The Executive Director did not explain why he "misspoke." Notwithstanding this affidavit, the defendants did not withdraw their concession of unconstitutionality. In *1007 fact, on January 2, 2008, the defendants filed a reply brief admitting, again, that "Defendants concede that the `Grandfather Clause' in AM 892 to LB 578 is unconstitutional. . . ." (Filing 50 at CM/ECF page 4.)
19. Based upon the defendants' concession of unconstitutionality, and the record more generally, the "Grandfather Clause" was enacted with a discriminatory purpose.
20. Based upon the defendants' concession of unconstitutionality, and the record more generally, the "Grandfather Clause" has a discriminatory effect.
II. ANALYSIS
The Nebraska law is unconstitutional and the defendants have clearly and repeatedly made judicial admissions to that effect. Among other things, the plaintiffs asserted that the law is unconstitutional because the "Grandfather Clause" violated the Equal Protection and Privileges and Immunities provisions of the Constitution and the defendants have repeatedly and formally agreed that such an assertion is true. The only question that remains is whether the admittedly unconstitutional portion of the law is severable from the portion that may not be unconstitutional.
I find and conclude that severance is inappropriate. The law must be enjoined in its entirety. I next explain why that is so.
A. The Defendants Must Suffer the Consequences of Their Admirable Candor.
The defendants argue that the "Grandfather Clause" was not important to passage of the legislation and so I should sever that unimportant portion from the other portion. They assert that "no current license holders were impacted "by the Clause" and therefore "it is illogical to argue that LB 578 would not have been adopted without the Grandfather Clause." (Filing 32 at CM/ECF page 11.) In essence, the defendants argue that the "Grandfather Clause" did not actually protect prior license holders even though it was plainly meant to do so because no license holder would have been in violation of the law if anybody had taken a hard look at the situation. Thus, because the "Grandfather Clause" has been determined to be unnecessary (after the fact), I should sever it. I reject this inventive, but ultimately inconsistent, argument.
First, and most importantly, the argument the "Grandfather Clause" is unnecessary to protect existing license holders directly contradicts the judicial admission that the "Grandfather Clause" violates two parts of the Constitution. If the "Grandfather Clause" was not enacted with the purpose and intent of actually protecting a class of Nebraska license holders to the detriment of the Florida plaintiffs in violation the Equal Protection and Privileges and Immunities clauses of the Constitution, why does Nebraska now concede that the "Grandfather Clause" is unconstitutional?
More colloquially, if there was no harm, why does Nebraska admit that there was a foul? The defendants offer no explanation for that simple question, and so I shall supply one. The law has both a discriminatory purpose and a discriminatory effect and that is why this particular "Grandfather Clause" is unconstitutional.[13]
I do not fault the defendants, or their able lawyers, for making the concession of unconstitutionality. The apparent motivation for, and evident consequence of, the "Grandfather Clause" protecting Nebraska businessmen to the detriment of businessmen from other states would have *1008 been very difficult to defend. See, e.g., Jones v. Gale, 470 F.3d 1261, 1267 (8th Cir.2006) (Owners of farms or ranches brought an action challenging the constitutionality of a Nebraska constitutional amendment prohibiting farming or ranching by corporations and syndicates. The United States District Court for the District of Nebraska granted summary judgment in favor of the owners and refused severance. The Eighth Circuit Court of Appeals affirmed and stated that a "law `overtly discriminates' against interstate commerce if it is discriminatory on its face, if it has a discriminatory purpose, or if it has a discriminatory effect.") (citations omitted), cert. denied, ___ U.S. ___, 127 S. Ct. 1912, 167 L. Ed. 2d 577 (2007). While the defendants' candor is worthy of praise, it is not an excuse for wiggling out of the consequences of their concession.
Second, the assertion that the "Grandfather Clause" is unimportant because no Nebraska license holder would actually be in violation of the law anyway is based upon an "after the fact" analysis by the Executive Director of the Commission. Essentially, he states that following the passage of the law, he looked at his records and concluded that no existing license holder could be in trouble. Setting to one side the speculative nature of that assertion, and also setting aside the self-serving nature of that analysis, as I shall next demonstrate, the "Grandfather Clause" has real value to Nebraska businesses even if I assume that the Director is correct.
Whether or not Nebraska wholesalers really have anything to worry about, the law gives them a 100% guarantee against being pursued by the regulators for violations of the amended law if they obtained their license prior to 2007. Giving "insurance" to the "home team" even if it turns out that the "home team" does not need it strikes me as something Nebraska legislators would be keen on doing. Thus, even if I assume (which I do not) that the "Grandfather Clause" is objectively unnecessary to protect the "home team," that does not mean Nebraska legislators realized that their handiwork was meaningless. For purposes of severance analysis, I think it far safer to assume that the Nebraska legislators passed the law with the "Grandfather Clause" as a critical part of that law because those politicians preferred to "be safe rather than sorry." It strains credulity to assume that Nebraska legislators would have passed the challenged law without the "Grandfather Clause" on the assumption that their Nebraska constituents would, never have anything to worry about.[14] Frankly put, that is no way to get reelected.
It is also worth remembering that an aide to the sole sponsor of the legislation consulted the Executive Director about the substance of the amendment before it was passed, but the aide did not consult the Director about the "Grandfather Clause." The Executive Director had no idea why the "Grandfather Clause" was added. These twin facts strongly suggest that the "Grandfather Clause" was a fait accompli generated by a politician's desire to protect insular interests rather than being driven by an innocent but innocuous policy rationale. That being the case, it is hard to believe that the "Grandfather Clause" was inconsequential to the passage of the legislation.
In sum, I reject the assertion that the unconstitutional "Grandfather Clause" was *1009 an unimportant part of the legislation that may be, severed because the Executive Director now believes that no Nebraska beneficiary of that clause really needs it. In addition to being speculative and self-serving, such an argument belies the defendants' concession of unconstitutionality and flies in the face of political reality. As a result, I must next address the more conventional arguments for and against severance.
B. Applying Conventional Legal Rules, Severance is Not Appropriate.
"The issue of severability is one of state law." Dakota, Minnesota & Eastern Railroad Corp. v. South Dakota, 362 F.3d 512, 518 (8th Cir.2004) (citing Leavitt v. Jane L., 518 U.S. 137, 116 S. Ct. 2068, 135 L. Ed. 2d 443 (1996)). Regarding the state law at issue in this case,
the Nebraska Supreme Court has held that a portion of a statute is severable if a "workable plan" remains after severance, the valid portions are "independently enforceable," the invalid portion did not serve as "such an inducement to the valid parts that the valid parts would not have passed without the invalid part," and severance will not violate the "intent of the Legislature."
Jones, 470 F.3d at 1271 (citing Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858, 873 (1992)).
The Nebraska Supreme Court has also said that "amendments may be saved only if it appears that the unconstitutional part did not constitute an inducement to the passage of the remaining amendments." Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68, 79-80 (1996) (denying severance regarding a constitutional amendment) (citing Fitzgerald v. Kuppinger, 163 Neb. 286, 79 N.W.2d 547 (1956)) (denying severance regarding a statute) (emphasis added). Thus, if the unconstitutional part of a Nebraska law served as an inducement to passage, severance is not permitted under any circumstance.
1. Applying the Nebraska Law of Severance, the Eighth Circuit Has Stressed Two Factors: (a) the Presence or Absence of a Severability Clause and (b) the Likelihood that the Offending Portion Induced Passage of the Entire Legislation.
In Jones, the Court of Appeals held that the unconstitutional portions of a Nebraska constitutional amendment, prohibiting farming or ranching by corporations and syndicates except for family farms or ranch corporations or limited partnerships in which at least one family member was a person residing on or actively engaged in the day to day labor and management of the farm or ranch, could not be severed from the valid provisions. In Jones, there was no severability clause, and there was no showing that the unconstitutional part of the amendment did not constitute an inducement to the passage of the remaining part. The Court of Appeals found that severance was not justified in such a circumstance even though "severing the unconstitutional portion . . . leaves a workable plan that is independently enforceable." Jones, 470 F.3d at 1271.
In this case, the challenged law contains no severability clause. This omission is particularly important in cases like this one where the evident intention of the law was to protect "in state" interests from "out of state" interests, and the implementation of the unobjectionable part, without the severed unconstitutional provision, may turn the law against "in state" interests. In other words, severance could have the unintended consequence of harming the very persons or entities the law was intended to promote and protect. The *1010 absence of a severability clause indicates that the legislature was not willing to take that risk.
Even more importantly, the unconstitutional provision was a material inducement to passage of the entire amendment. Senator McDonald, the sole author of the amendment, explicitly told her colleagues that the "intent is not to affect current license holders" and she stated that the law was intended to "preserve the licenses of those that . . . have already obtained a license. . . ." (Filing 33-2 at CM/ECF pages 18-19). (Emphasis added.) If the sole sponsor's explicit "intent" was to "preserve" the interests of current license holders, it would be strange indeed to view the "Grandfather Clause," which protects those license holders, as an appendage that can be freely amputated without doing violence to the will of the legislature.
As in Jones, I am confronted with a law favoring Nebraskans that lacks a severability clause. As in Jones, I am also confronted with a law where the unconstitutional provision favoring Nebraskans unquestionably provided a material inducement to the passage of the entirety of the legislation. As in Jones, it is proper to strike the balance against severance.
While the foregoing ends the matter, I next address the two main arguments advanced by the defendants regarding the severance issue. I explain why neither one is persuasive.
2. Under the Nebraska Law of Severance, the Job of the Court is Not to "Strengthen" the Law But to Implement the Intent of the Legislature.
The defendants assert that I should sever the "Grandfather Clause" to "strengthen" Nebraska law. Admitting the pernicious nature of the "Grandfather Clause," the defendants state:
[I]n the present case, the Grandfather Clause is actually contrary to the legislative purpose of Neb.Rev.Stat. § 53-169.01, in that it purports to allow deterioration of Nebraska's three-tiered liquor industry system by "grandfathering" in prohibited wholesaler/manufacturer relationships that existed prior to January 1, 2007. Not only does a "workable plan" remain with the removal of the Grandfather Clause from § 53-169.01, but removal actually strengthens Nebraska's three-tiered liquor industry system.
(Filing 32 at CM/ECF page 9.)
Respectfully, this argument completely misunderstands the purpose of the law of severance. It is not a judge's job to make Nebraska law "stronger" when considering whether to sever. See, e.g., Duggan, 544 N.W.2d at 79 ("The severability analysis has not been used to revise careless drafting or to correct clerical errors.") On the contrary, the judge's job is to determine whether the unconstitutional portion of the law induced the legislature to act. When doing so, the judge does not determine what will make the law better, but rather the judge examines "the character and quality of the action of the Legislature as it appears in the legislation under scrutiny." Fitzgerald, 79 N.W.2d at 553.
While these executive branch defendants the Governor, the Attorney General, the Liquor Commission and the Commissioners may prefer a law that gives no parochial protection to Nebraska interests, that was quite plainly not the intention of Senator McDonald and her legislative colleagues. I, therefore, respectfully reject the defendants' invitation to "strengthen" Nebraska law by use of the "severance" mechanism. If Nebraska law is be "strengthened," the Nebraska legislature must do so.
*1011 3. Given the Market Complexities of This Regulated Industry, Whether A Workable Statutory Scheme Remains is Unknowable.
The defendants seem to argue that even if the offending provision was an inducement to the passage of the law, the law may still be saved if it works without including the bad part. This argument is apparently based upon a parsing of the Duggan case that dealt with an initiative to amend the state constitution. See Duggan, 544 N.W.2d at 79-80 (denying severance of a constitutional amendment) (citing Fitzgerald, 163 Neb. 286, 79 N.W.2d 547 (denying severance of a statute)). Given that the Fitzgerald case, the only case cited by Duggan on this point, dealt with a statute, and not an amendment to the constitution, the defendants underestimate the force of an "inducement" conclusion when a statute is at issue. Thus, following the strong and unambiguous language in Duggan, if the offending portion of a statute induced passage of the legislation, then the inquiry ends and severance is not permitted. Duggan, 544 N.W.2d at 79-80 (the "amendments may be saved only if it appears that the unconstitutional part did not constitute an inducement to the passage of the remaining amendments.") (Emphasis added).
However, even if I am wrong, the predicate for the defendants' assertion the law is workable when severed cannot be accepted. Simply put, it is based upon an "after the fact" legal conclusion made by a representative of a party to this litigation the Executive Director of the Commission. For two reasons, I will not rely upon that legal conclusion.
First, it is not obvious that the Executive Director's conclusion is correct. Indeed, I fail to see why a wholesaler who is an "agent of a manufacturer" may not be controlled by the "manufacturer" in the same way that a "subsidiary" of a "manufacturer" who is a wholesaler may be controlled. After all, the vertical integration prohibitions found in Neb.Rev.Stat. § 53-169.01 ban "direct and indirect" "interests" in the ". . . conduct, operation, or management of any alcoholic liquor wholesaler" and they do not focus solely on ownership interests. So long as the relationship between a manufacturer and a wholesaler involves "an interest of a financial or business nature," the Nebraska Supreme Court has said that the "scope of the interest forbidden [by Neb.Rev.Stat. § 53-169.01] is wide . . ." Nebraska Liquor Distributors, Inc. v. Nebraska Liquor Control Commission, 269 Neb. 401, 693 N.W.2d 539, 547 (2005). If the law as amended and severed were applied to all wholesalers, including those linked to manufacturers by agency or other similar relationships, then "grandfathered" Nebraska wholesalers comprising 90% percent of the market may be driven out of business unless they terminate their relationships with manufacturers.[15] Would that be workable? I have no idea.
Second, it is simply not the law that the legal opinion of a party to pending litigation must be accepted as binding on the judge regarding questions of "workability" and "severability." More specifically, given the market complexities of this regulated industry,[16] whether or not the remaining portions of the law would work effectively is a matter that can only be determined if severance took place and *1012 then the Commission and the courts of Nebraska had occasion to deal with the "fall out" in an actual case and controversy involving the "grandfathered" parties.
Consequently, the answer to the question of whether the statute would work if severed is unknowable. In my opinion, Nebraska's severance rules do not require or permit me to guess and I will not do so.
C. The Governor and the Attorney General Are Proper Parties for Purposes of Injunctive Relief
To the extent that the defendants argue that I must dismiss the Governor and the Attorney General because they have no real connection to enforcement of the challenged law, I reject that argument because it is not supported by Eighth Circuit precedent. See, e.g., Citizens for Equal Protection v. Bruning, 455 F.3d 859, 864 (8th Cir.2006) (citing the broad powers of the Nebraska Governor and the Nebraska Attorney General to "enforce the State's Constitution and statutes," and concluding that the Governor and the Attorney General have "`some connection with the enforcement' [of the law] and therefore this suit for equitable relief falls within the exception to the State's Eleventh Amendment immunity established in Ex parte Young, 209 U.S. 123, 157, 28 S. Ct. 441, 52 L. Ed. 714 (1908).").
D. It is Unnecessary and Inadvisable to Resolve Plaintiffs' Other Claims or Defendants' Defenses to Those Other Claims.
The plaintiffs raise other challenges and the defendants assert defenses to those other claims. Having reached a decision that will entirely resolve this case, I believe that it is both unnecessary and inadvisable to address the other claims or the defenses related to those other claims. See, e.g., Cellco Partnership v. Hatch, 431 F.3d 1077, 1084-85 (8th Cir.2005) (directing entry of permanent injunction, holding one portion of a state statute invalid as a result of federal preemption, refusing severance, and refusing to address whether other portions, of the statute were unconstitutionally value) (citing Planned Parenthood v. Wasden, 376 F.3d 908, 937 (9th Cir.2004)), cert. denied, ___ U.S. ___, 127 S. Ct. 433, 166 L. Ed. 2d 307 (2006). I shall simply dismiss the plaintiffs' other claims without prejudice.
Accordingly,
IT IS ORDERED that:
1. The plaintiffs' motion for partial summary judgment (filing 40) is granted. The defendants' motion for partial summary judgment (filing 31) is denied.
2. The plaintiffs' motion to strike (filing 39) is denied. The defendants' motion to strike (filing 52) is denied.
3. Contemporaneous with the entry of this memorandum and order, a separate judgment will be entered providing in material part as follows:
A. The Court declares that Neb.Rev. Stat. § 53-169.01 as amended by LB 578 (2007) is unconstitutional because that portion of the amendment containing a "Grandfather Clause" violates the Equal Protection Clause and the Privileges and Immunities Clause of the United States Constitution. The Court declares that the "Grandfather Clause" was enacted with a discriminatory purpose and the "Grandfather Clause" has a discriminatory effect. The Court declares that the "Grandfather Clause" cannot be severed from the remainder of the amendment.
B. The defendants and their agents, servants and employees are permanently enjoined from enforcement *1013 of Neb.Rev.Stat. § 53-469.01 as amended by LB 578 (2007).
C. All other claims of the plaintiffs not addressed in paragraph A are dismissed without prejudice.
D. Taxable costs shall be assessed against the defendants.
4. If the plaintiffs believe they are entitled to attorney fees, they shall file their motion and supporting papers within 14 days of this date pursuant to Federal Rule of Civil Procedure 54(d)(2) and NECivR 54.3 and 54.4. If a timely motion for attorney fees is filed before the filing of a notice of appeal, the motion will have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59. See Fed.R.Civ.P. 58(e). The defendants shall have 14 days thereafter to respond.
JUDGMENT
Pursuant to the memorandum and order entered this date,
IT IS ORDERED that judgment is entered for the plaintiffs and against the defendants as follows:
A. The Court declares that Neb.Rev. Stat. § 53-169.01 as amended by LB 578 (2007) is unconstitutional because that portion of the amendment containing the "Grandfather Clause" violates the Equal Protection Clause and the Privileges and Immunities Clause of the United States Constitution. The Court declares that the "Grandfather Clause" was enacted with a discriminatory purpose and the "Grandfather Clause" has a discriminatory effect.
B. The defendants and their agents, servants and employees are permanently enjoined from enforcement of Neb.Rev.Stat. § 53-169.01 as amended by LB 578 (2007).
C. All other claims of the plaintiffs not addressed in paragraph A are dismissed without prejudice.
D. Taxable costs shall be assessed against the defendants.
NOTES
[1] To be clear, I express no opinion on whether the remaining portion of the law is actually unobjectionable.
[2] Compare the defendants' statement of material facts, filing 32 at CM/ECF pages 3-5 (paragraphs 1-15) with the plaintiffs' response to defendants' statement of material facts, filing 41 at CM/ECF pages 3-4 (admitting paragraphs 1-14 and contending that paragraph 15 is a legal conclusion); compare the plaintiffs' statement of additional material facts, filing 41 at CM/ECF pages 4-7 (paragraphs 16-32) with the defendants' response to the plaintiffs' statement of additional material facts, filing 50 at CM/ECF pages 2-3 (admitting paragraphs 16-30 and paragraph 32, except for "characterizations," and stating that the defendants have insufficient knowledge to dispute or admit paragraph 31); compare the defendants' statement of additional material facts, filing 50. at CM/ECF page 3 (paragraphs 33 and 34) with the plaintiffs' response to defendants' Statement of additional material facts, filing 56 at CM/ECF page 9 (stating that paragraph 33 is a legal conclusion for which no response is required and admitting that paragraph 34 reflects a legal interpretation, but observing that the plaintiffs think the opinion is wrong).
[3] The defendants' index of evidence may be found at filing 33. The plaintiffs' index of evidence may be found at filing 42. The defendants' supplemental index of evidence may be found at filing 51.
[4] The able lawyers wage a mini-war over the admissibility of two affidavits. The plaintiffs want me, to strike an affidavit submitted by the Executive Director of the Nebraska Liquor Control Commission. (Filing 39.) The defendants move to strike an affidavit submitted by Steven R. Becker, one of the plaintiffs. (Filing 52.) Because it does not matter, I deny both motions. That is, no fact in the challenged portions of the affidavits are material to my decision.
[5] The "old" law apparently allowed manufacturers to hold interests in Nebraska wholesalers if the alcohol they manufactured (imported) was not sold in Nebraska. The evident purpose of the law was to prohibit vertical integration of manufacturers and wholesalers in the, Nebraska market. Thus, even though Southern was a "manufacturer" due to the fact it imported certain alcoholic beverages into the United States, it could own an interest in a Nebraska wholesaler (Southern Nebraska) so long as it did not ship alcohol to Nebraska.
[6] By striking "for distribution and sale within this state," the law was changed to prohibit a manufacture from holding an interest in a Nebraska wholesaler whether or not the manufacturer's product' was sold in Nebraska. Thus, even though Southern might not ship into Nebraska the alcohol it imported, the effect of the amendment was to prohibit Southern Nebraska from acting as a wholesaler in Nebraska because its parent corporation, Southern, was a "manufacturer" (importer) of alcohol.
[7] At the time this statement was made by Senator McDonald, Southern Nebraska was an "applicant" for a Class X license and Southern held a Class S license. I doubt that the timing of Senator McDonald's actions were coincidental.
[8] The revocation of the Class X license would occur because Southern, the parent corporation of Southern Nebraska, is an importer and thus considered by Nebraska to be a "manufacturer" even though it has now surrendered its Class S license to ship alcohol into Nebraska.
[9] Amendment XIV, Section 1, Clause 2 of the United States Constitution is frequently known as the Privileges or Immunities Clause. It provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . ." Amendment IV, Section 2, Clause 1 of the Constitution also provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
[10] According to the Executive Director, this company is one of the "grandfathered" Nebraska wholesalers. Incidentally, I believe the correct spelling is "Finocchiaro." See the reference to "Finocchiaro Wine Co." in Omaha, Nebraska at Goliath Business Knowledge on Demand, available at http://goliath.ecnext. com/ (under Company Profiles).
[11] I take judicial notice of all statements made by the Executive Director at the hearing on the motion for a temporary restraining order.
[12] Parenthetically, I am currently part of a pilot project in the federal courts testing the utility of digital audio recordings.
[13] To be crystal clear, there is nothing wrong with "grandfather clauses" in the abstract.
[14] After all, what is to stop the Executive Director from changing his mind at some future date when some other litigant brings suit for not enforcing the law against Nebraska wholesalers who got their licenses prior to 2007? The answer, of course, is nothing, unless the "Grandfather Clause" is part of the law.
[15] Consider, for example, Finocchiaro's relationship with Gallo Wines.
[16] If one doubts this complexity, please listen to the digital audio recording of the Executive Director explaining the market and the regulatory milieu at the hearing on the motion for the temporary restraining order.
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484 Pa. 198 (1979)
398 A.2d 1013
COMMONWEALTH of Pennsylvania
v.
Cleveland POWERS, Appellant.
Supreme Court of Pennsylvania.
Argued January 18, 1979.
Decided March 16, 1979.
*199 *200 Barry L. Adelman, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Darryl A. Irwin, James Garrett, Asst. Dist. Attys., Philadelphia, for appellee.
*201 Before EAGEN, C.J., and ROBERTS, NIX, MANDERINO and LARSEN, JJ.
OPINION
LARSEN, Justice.
Appellant was tried by a jury in the Court of Common Pleas of Philadelphia County and convicted of murder of the third degree, aggravated assault and battery, and various weapons offenses. This appeal followed.
Appellant's first contention is that his warrantless arrest was illegal and that, therefore, his confession should have been suppressed as the fruit of an illegal arrest. Whether the arrest was constitutionally valid depends upon whether, at the time the arrest was made, the arresting officers had probable cause to make the arrest. Commonwealth v. Pinney, 474 Pa. 210, 213, 378 A.2d 293, 295 (1977). Probable cause to arrest existed if "at the time appellant was detained by the police, the facts and circumstances within the officer's knowledge, and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the appellant has committed or was committing an offense." Id. citing, inter alia, Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). The Commonwealth bears the burden of establishing, with reasonable certainty, facts sufficient to establish that probable cause for the arrest existed. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119, 123 (1974).
The existence or non-existence of probable cause can only be decided in the concrete factual context of each case. See, Sibron v. New York, 392 U.S. 40, 59, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). "While this Court does not sit to appraise contradictory factual questions, it is this Court's duty to make an independent examination of probable cause, apart from any conclusions drawn by a trial judge or other appellate court, to ensure that the constitutional criteria established to safeguard Fourth Amendment rights have been respected. See, Ker v. California, 374 U.S. 23, 24, 83 *202 S.Ct. 1623, 10 L. Ed. 2d 726 (1963)." Commonwealth v. Pinney, supra, 474 Pa. at 214, 378 A.2d at 295. In determining whether the suppression court erred in ruling appellant's confession admissible, this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the whole suppression hearing record, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976).
Applying these standards to the instant case, we conclude that the denial of appellant's suppression motion was proper. The circumstances surrounding the arrest are as follows. On December 9, 1975, shortly before 8 p.m., Policeman Martin Dietz was summoned to the 3100 block of Berks Street in Philadelphia where he found Harold Berry, the deceased, bleeding on the sidewalk. Several people present at the scene informed Dietz that there had been a stabbing and they gave the assailants' descriptions to Dietz. At approximately 7:57 p.m., Dietz issued a "flash" police radio broadcast regarding the suspects. This broadcast stated that four or five negro males were involved, including one in a green army fatigue jacket with the hood pulled up, one in a white tee-shirt, and one six foot four inches tall in a brown overcoat and red knit cap. Other officers recalled that radio flashes had described more than one assailant as wearing green army jackets. A subsequent flash stated the suspects were from the "24th and Berks Street" gang. Upon receiving this latter information, Officer Joel Goodwin and Policeman Robert Dunsmore drove directly to the area of the intersection of 24th and Berks Streets. There, some time between 8 p.m. and 8:09 p.m., they discovered three young black men walking on Judson Street (just east of 24th) onto Berks. Two of the men, appellant and co-defendant Howard Kemp, were wearing green army jackets, one with the hood up. The third, co-defendant Otis Walker, was wearing a white tee-shirt with an open blue jacket. The officers testified that, while there were other black men in the area, none of them were similarly attired.
*203 The policemen then took the suspects in their unmarked car to the scene of the stabbing where the men were immediately identified by eyewitnesses as being Berry's attackers. Thereupon the suspects were driven to police headquarters where they eventually gave statements inculpating themselves in the stabbing.
While it may be true, as appellant argues, that many young black men in the 24th and Berks Streets area wear green army jackets and white tee-shirts, nevertheless the discovery of the three youths, together on the street, in the neighborhood to which the suspects had fled, ten to fifteen minutes after the crime had occurred, where the three youths fit descriptions of the suspects and where there were no other persons matching those descriptions in the area, presented a combination of circumstances which was surely sufficient to justify a reasonable belief that they could well be the guilty parties. Thus probable cause existed to arrest appellant. Compare Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974), with Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). Since the arrest was legal, appellant's argument that his confession should have been suppressed because it was the fruit of an illegal arrest is without merit.
Appellant next argues that the trial judge committed reversible error in refusing to grant appellant's request to instruct the jury concerning the law of self-defense. Appellant maintains that his testimony was sufficient to raise an inference that he was acting in self-defense within the meaning of the law. We do not agree.
Appellant testified that he and his companions went to the area of the intersection of 32nd and Berks Streets (the area where the stabbing occurred) looking for some girls he had recently met, and that while they were asking a young man if he knew the girls, a gang suddenly emerged from a store wielding knives and began chasing them. While appellant testified he was afraid, the only physical contact which he said took place was that someone hit and pushed a `dude' who was in front of them on 31st Street, and that a `dude' *204 came off a porch and tried to grab Howard Kemp (co-defendant) but that `dude' fell back. Appellant flatly denied stabbing anyone and denied that any of his companions had been injured or had stabbed anyone.
Before self-defense is in issue, there must be evidence introduced, from whatever source, to justify a finding that the killing may have been done in self-defense Commonwealth v. Black, 474 Pa. 47, 53, 376 A.2d 627, 630 (1977). Our review of the record convinces us that the requisite elements of self-defense have not been presented.[1]
As noted, appellant denied knowledge of any stabbing. The only physical contact admitted by appellant has hitting and pushing one person who was in the way of he and his friends and, inferentially, perhaps jostling another who had come off a porch. Certainly, the testimony did not establish that either of these `dudes' were provoking the difficulty or were acting in a manner sufficient to instill a reasonable belief that it was necessary to use deadly force against them. In similar cases, we have held that where a defendant steadfastly denies that he or his companions used deadly force against the victim and where the issue of self-defense was not otherwise injected into the trial by either the prosecution or the defense, the failure to charge upon the subject was not error. Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970) (appellant, Gray, consistently denied that he stabbed victim and issue of self-defense not otherwise injected into trial no error in judge's refusal to charge jury on self-defense); Commonwealth v. Young, 460 Pa. 598, 334 A.2d 252 (1975) (appellant, Young, testified he had nothing to do with the homicide and he continued the affray after it had broken up no error in judge's refusal to *205 charge jury on self-defense). Under the circumstances of this case, it was not error for the trial judge to refuse to instruct the jury on self-defense.
Judgments of sentence affirmed.
O'BRIEN, J., did not participate in the consideration or decision of this case.
NIX, J., filed a concurring opinion.
EAGEN, C.J., concurs in the result.
ROBERTS, J., filed a dissenting opinion.
NIX, Justice, concurring.
If the facts were limited to those recited and relied upon in the majority opinion, I would have serious question as to the probable cause for the arrest. I agree with the appellant that the descriptions were of a general nature and that the most distinguishing feature of the description (i.e., that one of the three youths was six feet four inches in height) did not match the group of suspects taken into custody.
The critical fact, in my judgment, is that when the officer returned to the scene with the suspect and opened the door of the police vehicle, the suspects were immediately identified by eyewitnesses to the crime prior to any attempt by the police to elicit an identification. Certainly, this identification alone would have justified the arrest. More importantly, assuming that the police did not have sufficient basis initially for taking the suspects into custody, the identification which was in no way prompted by police action would not have been tainted. See Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). It is for this reason that I can concur in the result reached by the majority.
ROBERTS, Justice, dissenting.
Police arrested appellant without probable cause and his inculpatory statement introduced at trial, over objection, *206 should have been suppressed. I dissent and would reverse judgments of sentence and remand for a new trial.
NOTES
[1] These elements are: (1) the actor must have reasonably believed himself to be in imminent danger of death or bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm; (2) the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying; and (3) the actor must have violated no duty to retreat. Commonwealth v. Black, supra, 474 Pa. at 53, 376 A.2d at 630; Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 505 (1973).
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761 S.W.2d 735 (1988)
Donald L. DAVIS and Russell Correll, Appellants,
v.
J.C. NICHOLS COMPANY and Harwood Operating Company, Respondents,
v.
BOARD OF ZONING ADJUSTMENT, CITY OF KANSAS CITY, Missouri, Respondent.
No. WD 40297.
Missouri Court of Appeals, Western District.
December 6, 1988.
*736 Christopher C. Marsh, Springfield, for appellants.
Timothy S. Frets, Baker & Sterchi, Kansas City, for J.C. Nichols & Harwood Operating Co.
Before SHANGLER, P.J., and NUGENT and COVINGTON, JJ.
SHANGLER, Presiding Judge.
The plaintiffs Davis and Correll appeal from a summary judgment entered on their petition for damages for private nuisance against the defendants J.C. Nichols Company and Harwood Operating Company for the unreasonable use of their parking lot. The plaintiffs complain that the summary judgment violates the mandate and opinion of this court in Davis v. J.C. Nichols Co., 714 S.W.2d 679 (Mo.App.1986), which remanded the cause to the circuit court "for *737 a new trial, all in accordance with the Opinion of this Court." The plaintiffs argue that the summary judgment violates the holding of Davis that the city ordinances, excluded by the trial court, were admissible to define nuisance and to show that the special permit under which the parking lot was constructed was in violation of the ordinance so that its maintenance by the defendants constituted an unreasonable use. The plaintiffs say that the circuit court on remand was bound to this holding as the law of the case, but that the trial court by the summary judgment denied the ordinances any efficacy as evidence and so failed its duty of compliance the law imposes.
The formal entry of summary judgment expresses the rationale upon which the decision rests:
The directed verdict entered in defendants' favor at the close of plaintiffs' evidence at the July, 1985 trial was reversed and remanded by the Missouri Court of Appeals, Western District based on the exclusion of two Kansas City, Missouri ordinances from evidence at trial.[1] The first ordinance was § 39.446(I)(A) (the zoning ordinance under which defendant obtained the authority to expand an existing parking lot). The Court of Appeals held the ordinance should have been admitted into evidence as it was relevant to prove that defendants' parking lot, as constructed, exceeded the scope of the special use permit. 714 S.W.2d at 684. The uncontroverted evidence developed after remand unassailably proves that defendants did not exceed the scope of the Special Use Permit in constructing the parking lot expansion. This Court finds[2]that the parking lot was constructed as the permit authority required and in the manner contemplated and approved by the BZA. The Court further finds that there was no "over-extension" of the parking lot beyond the boundaries set forth in the ordinance or of the permit. The uncontroverted evidence on file shows that there is no genuine issue of material fact on this point. Rule 74.04(c).
The other ground of reversal of this Court's Directed Verdict concerned the exclusion of § 25.4, Code of General Ordinances, from evidence. That ordinance has since been repealed; therefore, the terms of a repealed ordinance are no longer relevant nor admissible in evidence on a re-trial. [emphasis added]
The initiatives open to a trial court on remand are as rendered in the mandate and opinion of the appellate court. Manor v. Manor, 706 S.W.2d 603, 605[1, 2] (Mo.App.1986). Where a remand is with directions, a trial court is bound to render judgment in conformity with the mandate. Keltner v. Harris, 204 S.W. 561, 562[2] (Mo.App.1918). The trial court is without power to modify, alter, amend or otherwise depart from the appellate judgment. Its proceedings contrary to the directions of the mandate are "null and void." Morrison v. Caspersen, 339 S.W.2d 790, 792[1-3] (Mo.1960). A reversal and remand "for a new trial, all in accordance with the Opinion of this Court" [as our mandate in Davis directs], on the other hand, is a general remandment for a new trial, and without specific directions. Feinstein v. McGuire, 312 S.W.2d 20, 24[2, 3] (Mo.1958); Brocco v. May Department Stores Co., 227 Mo. App. 395, 55 S.W.2d 322, 325[4, 5] (1932). A general remand nevertheless has the effect *738 of a direction to proceed in accordance with the holdings entered by the opinion of the court of review as the law of the case. State ex rel. Melbourne Hotel Co. v. Hostetter, 344 Mo. 472, 126 S.W.2d 1189, 1192[3-6] (banc 1939).
These principles yield the fundamental rule that:
"[A] prior decision by an appellate court becomes the law of that case, with rare exceptions, and must be recognized as such in all subsequent proceedings had therein in the lower courts and, with rare exceptions, in the appellate court itself which rendered such decision upon a subsequent appeal to it upon the same point."
Jenkins v. Wabash Ry. Co., 232 Mo.App. 438, 107 S.W.2d 204, 211[4] (1937) cert. denied, 302 U.S. 737, 58 S. Ct. 139, 82 L. Ed. 570 (1937). The law of the case is more than merely a courtesy: it is the very principle of ordered jurisdiction by which the courts administer justice.
"`When a point, once decided by this [supreme] court, comes before either the circuit court or the Court of Appeals on further proceedings in the same case, neither of the courts last named has jurisdiction to overrule this court ... Here the question is as to the duty of that court to follow the prior decision of this court in the same case. It becomes, not a question of whether that court is right or wrong in its construction of the decision of this court, but whether that court is within its lawful jurisdiction, if it disregards the law of the case as previously declared by this court.'" [emphasis added]
Id. 107 S.W.2d at 210 [citing the separate opinion of Judge Ferriss, approved by the majority opinion in State ex rel. Curtis v. Broaddus, 238 Mo. 189, 142 S.W. 340, 349 (1911)].
Our first opinion in Davis was a review of a judgment entered on a directed verdict for the defendants on claims of private nuisance at the close of the evidence for the plaintiffs. The claims of nuisance by the area residents were based upon the manner of the construction of a customer-employee parking lot on residentially-zoned property and upon the manner of its operation thereafter. The construction was enabled by the grant of a special use permit issued by the municipal Board of Zoning Adjustment [BZA] under § 39.446(I)(A) of the municipal ordinances. That enactment authorizes the BZA to:
permit as an auxiliary use for customers and employees of neighboring business establishments, a parking area for passenger automobiles, on [residential lots], all of which lot or lots are within five hundred [500] feet of a business or industrial district.... [emphasis added]
Other municipal ordinances§§ 25.1, 25.2, 25.3, 25.4, 25.5, 25.14 and 25.15prohibit the maintenance of nuisances, define them, and describe complaint procedures. The plaintiffs offered these ordinances as evidence, but the court disallowed them as irrelevant on the proof of private nuisance. Davis held the exclusions error, and remanded for a new trial because of that error. In the course of opinion, Davis renders the rationale for the probativeness of each set of ordinances, first as to § 39.446(I)(A), and then as to the § 25 series.
Davis explains that in that first trial of the nuisance claims, the defendants used the fact of the special use permit issued by the BZA under § 39.446(I)(A) for the inference that the construction and operation of the parking lot were with official sanction, and hence could not be a nuisance. The plaintiffs offered § 39.446(I)(A) to show that the parking lot was not constructed as the ordinance requiredbut rather, as the evidence would show, exceeded the 500 foot limitation from the nearest commercial or industrial zone. The defendants argued to the Davis court that the ordinance was properly rejected by the trial court since the use of § 39.446(I)(A) tendered by the plaintiffs constituted "a collateral attack on the decision of the Board of Zoning Adjustment" to allow the special permit, an issue altogether irrelevant to the claims for nuisance. Davis responded that the ordinance was probative as "countering the defense of the permit itself and would also be some *739 evidence bearing on the reasonableness of the property use." 714 S.W.2d at 684.
The defendants on motion for rehearing reasserted that the decision of the BZA to issue the special use permit, since final, was res judicata to any inquiry of its illegality under § 39.446(I)(A). So, to validate that ordinance as evidence on the nuisance claimsas does Davisviolates principles of adjudicative finality and constitutes an impermissible collateral attack on the final decision of the BZA. Davis responded by a per curiam memorandum opinion expressly to guide the treatment of the evidence on the retrial. The response opinion iterated, but with more emphasis, the original rationale for the probativeness of the ordinance as evidence on the nuisance causes of action: that the parking lot could not have been lawfully constructed without the special use permit; that the only authority for the BZA to issue the permit was ordinance § 39.446(I)(A); and thatsince without disputeall but 10 feet of the ground site for the lot exceeded the maximum distance of 500 feet from a commercial district which ordinance § 39.446(I)(A) imposes the special use permit was unlawful. The ordinance was therefore relevant to prove that the area covered by the parking lot was not a lawful subject for a permit nor of the use made of the lot.
The per curiam memorandum opinion took particular note of the argument in the motion for rehearing that "[t]he BZA specifically held that § 39.446[(I)(A)] did not require the entire lot to be within the five hundred foot requirement"; that, in any event, after the passage of time for review of a decision of the BZA, even action for which it has no authority becomes immune from any challenge. To this, the opinion responded pointedly:.
The most casual reading of § 39.446(I)(A) discloses that such an interpretation is patently erroneous. The ordinance plainly says "all of which lot or lots" shall be within 500 feet of a commercial district. Under [defendants'] interpretation, there would be no limit to which a parking lot might be extended in a residential area so long as one foot of the ground was within 500 feet of the business district.
. . . .
The Board of Zoning Adjustment has no legislative power and cannot by its order amend or repeal any zoning ordinance, rule or regulation. Brown v. Beuc, 384 S.W.2d 845, 851 (Mo.App.1964).[3] Issuance of a permit not in conformity with the city code confers no rights to violate the code. H.B. Deal & Co. v. Kuhlmann, 244 S.W.2d 390, 393 (Mo.App.1951). If the Board of Zoning Adjustment had no authority or jurisdiction to act as it did, the order was void and can be attacked in any manner, whether directly or collaterally. Himmel v. Leimkuehler, 329 S.W.2d 264, 271 (Mo. App.1959). [emphasis added]
The evidence which [plaintiffs] tendered and which was refused admission was offered to support the claim that operation by respondents of a commercial parking lot in a residential neighborhood with the attendant noise, exhaust fumes and traffic was a nuisance. The ordinance governing the authority of the Board of Zoning Adjustment to issue parking lot permits was relevant and competent, not to initiate a review of the merits of the Board decision, but to demonstrate that the area covered by the parking lot was not a lawful subject for a permit.
Davis v. J.C. Nichols Co., WD 37385 slip op. at 3-4 (Mo.Ct.App. filed Aug. 6, 1986) (unpublished per curiam memorandum opinion on motion for rehearing to be published in Southwestern 2d Reporter).[4] This ruling of the opinion on rehearing, distinctly entered *740 upon the point, is the law of the case and binds the trial court on remand under our mandate in Davis. Williams v. Ford Motor Co., 454 S.W.2d 611, 614[2] (Mo.App.1970).
Notwithstanding the duty owed by the trial court to this our holding in Davis as the law of the case on the remand and new trial, the summary judgment impeaches Davis and denies ordinance § 39.446(I)(A) any efficacy as evidence of nuisance:
This Court finds that the parking lot was constructed as the permit authority required and in the manner contemplated and approved by BZA. The Court further finds that there was no "over-extension" of the parking lot beyond the boundaries set forth in the ordinance or of the permit. [emphasis added]
The finding of the summary judgment that "the parking lot was constructed as the
permit authority required and in the manner contemplated and approved by the BZA," however, was not a matter of disputeeither at the first trial or at the new trial. It was supererogatory to any function of summary judgment. The question posed to Davis, rather, was whether ordinance § 39.446(I)(A) was admissible on the proof of nuisance. Davis determines that the ordinance plainly requires that the entire parking lot area be within 500 feet of a commercial district, and since the undisputed evidence demonstrates that all but 10 feet of the ground area used for that purpose exceeds the limitation of the ordinance, the ordinance was relevant to prove that the lot was constructed and maintained in violation of law and so was an unreasonable use of the property by the defendants, notwithstanding that the construction and use conformed to the special permit. This exposition [as the opinion on rehearing explains] assumes a prior and cognate principle of law: that since a Board of Zoning Adjustment has no legislative power and cannot by order amend or repeal a zoning ordinance, the grant of a permit not conformable to the requirements of ordinance is an exercise beyond jurisdiction, confers no rights, is void, and can be attacked in any mannerdirectly or collaterally.
The summary judgment finding on remand: "there was no `over-extension' of the parking lot beyond the boundaries set forth in the ordinance" accedes to the insistent argument of the defendantsin the face of Davisthat the determination by the BZA that ordinance § 39.446(I)(A) did not require the parking lot to be within the five-hundred-foot requirement is not subject to collateral inquiry. That finding impeaches not only our determination of law in Davis that the ordinance requires the entire lot to be within 500 feet of a commercial zone, but also the undisputed fact that all but 10 feet of the parking lot ground area exceeded that maximum. In the case in which it is made, a previous ruling by the appellate court upon a point distinctly made is more than authority, it is a final adjudication. May v. Crawford, 150 Mo. 504, 51 S.W. 693, 699 (1899). Therefore, to slight our construction of ordinance § 39.446(I)(A) in Davis and our holding of law that the BZA special use permit did not conform to that enactment, was void, and so subject to collateral attack by evidence of the ordinance terms, was a course not open to the trial court on remand under our opinion and mandate. In re Marriage of Quintard, 735 S.W.2d 388, 390[1-4] (Mo. App.1987). Rather, the legal conclusions announced in Davis on the same facts not only prescribe the duty of the trial court on remand but limit its power to a strict obedience and conformity. Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650, 654[5] (1911).
If circumstances arise that cast doubt on the correctness of the law of the case as established on appeal, our procedures enable a litigant to press the appellate court to depart from the mandate and opinion by motion for rehearing, motion to recall mandate, or by appeal from the judgment entered after remand. Trower v. Missouri-Kansas-Texas R. Co., 353 Mo. *741 757, 184 S.W.2d 428, 430[3-5] (1944); Jenkins v. Wabash Ry. Co., 107 S.W.2d at 211[4]. We discern no change in the law, nor any manifest error of decision, nor any other "debt due justice" which prompts us to reconsider or veer from our declaration that, consonant with our construction of ordinance § 39.446(I)(A), the validity of the BZA special use permit was open to collateral attack by the terms of the ordinance itself. Id. The arguments of the defendantsas well as the "finding" of summary judgmentagainst the rule of collateral attack of such a void administrativeaction are cavil, and not pleas to redress an egregious lapse of justice. The principles which undergird this declaration of law in Davis are not uncertain.
That a board of zoning adjustment is without vestige of legislative power, so that a special use permit issued in contravention of the ordinance renders the exercise void, invests no rights and becomes subject to collateral attack is no new or suspect doctrine.[5] It is a principle of decision used not only by our courts, but also by other courts and noted by authoritative texts. See Himmel v. Leimkeuhler, 329 S.W.2d 264, 271 (Mo.App.1959); Weber v. Pieretti, 72 N.J.Super. 184, 178 A.2d 92, 101[15-17] (Ch.Div.1962) cert. denied, 39 N.J. 236, 188 A.2d 177 (1963); Waeckerle v. Board of Zoning Adjustment, 525 S.W.2d 351, 359[6, 7] (Mo.App.1975); 8 McQuillin Mun.Corp. § 25.152 (3d ed. 1983); 3 Rathkopf, The Law of Planning & Zoning § 42.07[4] (1988); City of Lamoni v. Livingston, 392 N.W.2d 506, 510[4] (Iowa 1986); Noonan v. Board of Zoning Review of Town of Barrington, 90 R.I. 466, 159 A.2d 606, 608[3] (1960); Hurt v. Caldwell, 222 Va. 91, 279 S.E.2d 138, 142 (1981).
The trial court on remand was concluded by the law of the case to receive ordinance § 39.446(I)(A) as evidence for the purpose Davis delineates. The summary judgment which rests on the exclusion of the ordinance is erroneous.
The summary judgment rests also on the repeal of § 25.4 since the remand, and hence on new and controlling evidence not before the court in the first adjudication by directed verdict or Davis on the appeal:
"The other ground of reversal of this Court's Directed Verdict concerned the exclusion of § 25.4, Code of General Ordinances, from evidence. That ordinance has since been repealed; therefore, the terms of a repealed ordinance are no longer relevant nor admissible on retrial."
A matter not decided by the appellate court opinion, either directly or by implication, is not within the operation of the rule that the appellate decision is the law of the case in subsequent proceedings in the same cause. Where the issues or evidence on the retrial are different from those vital to the first adjudication and opinion, the law of the case does not conclude either the trial court or the appellate court on remand. Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179, 1183[1] (banc 1939); Williams v. Ford Motor Co. 454 S.W.2d 611, 614[3-5] (Mo.App.1970).
In support of their motion for summary judgment at the retrial on remand, the defendants presented the certificate of the city clerk and the ordinance of repeal of § 25.4the ordinance Davis holds was improperly excluded at the first trial. Whether a law exists is a question of fact. Loeffler v. City of Kansas City, 557 S.W.2d 656, 657[2] (Mo.App.1977). That fact was not disputed by the plaintiffs, and the trial court on remand determined that there was no genuine issue as to that material fact and precluded that ordinance as *742 evidence by summary judgment. In the absence of a savings clause, the repeal of an ordinance operates to relieve from its sanctions persons in violation of the enactment. City of St. Louis v. Wortman, 213 Mo. 131, 112 S.W. 520, 525 (1908); Kansas City v. Clark, 68 Mo. 588, 589 (1878). The repeal of § 25.4 relieved the defendants of the sanction of any violation, and the plaintiffs of any right thereafter to ground any claim of nuisance on the effect of that ordinance. The continuance of a suit which is dependent on an ordinance which has been repealed stops where the repeal finds it. 62 C.J.S., Municipal Corporations § 438(c). The summary judgment which excluded § 25.4 as evidence on the retrial after remand does not disobey the law of the case in Davis, and was properly entered.[6]
The exclusion of ordinance § 25.4 notwithstanding, the order of summary judgment was erroneous. That ordinance proscribed as a nuisance the conduct of a business or enterprise within 150 feet from a residence "which causes or produces any noises, vibrations, smoke, dirt, dust, odors or gases to such extent as to be detrimental or injurious to the comfort, peace or health of other persons." Air and noise pollution [and other effects of land use] may give rise to a common law nuisance quite apart from any definition of ordinanceif the use which engenders them is unreasonable. Frank v. Environmental Sanitation Management, 687 S.W.2d 876, 881 (Mo. banc 1985); Fuchs v. Curran Carbonizing and Eng'g Co., 279 S.W.2d 211, 215[1] (Mo.App.1955). Davis, at 685 determines that the evidence presented by the plaintiffs at that first trial of such noise and exhaust fumes produced at the parking lot as to interfere with the enjoyment of their residence. There remained for adjudication, therefore, the material issue of fact as to whether these effects to the plaintiffs rendered the use of their property by the defendants unreasonable. Summary judgment was precluded by the court. Rule 74.04(c).
Judgment is reversed and cause is remanded for further proceedings.
All concur.
NOTES
[1] Contrary to the understanding the entry of summary judgment expresses, the law of the case Davis declares includes a holding also [at 683] that there was evidence at the trial that: "the parking lot created noxious fumes, noise and air pollution through operation of equipment during construction and of automobiles after completion and that numbers of people gathered on the lot and engaged in unseemly acts." This proof, quite apart from any effect of ordinance, suffices prima facie to submit the private nuisance cause of action. Bower v. Hog Builders, Inc., 461 S.W.2d 784, 794 (Mo.1970).
[2] The articulation of summary judgment in terms of "findings" is anomalous. Summary judgment issues when "there is no genuine issue as to any material fact [so that the movant] is entitled to a judgment as a matter of law." Rule 74.04(c). Fauvergue v. Garrett, 597 S.W.2d 252, 253[2-4] (Mo.App.1980).
[3] Brown v. Beuc, 384 S.W.2d 845 (Mo.App. 1964), was overruled by Matthew v. Smith, 707 S.W.2d 411 (Mo. banc 1986), but not for the declaration: "The Board of Zoning Adjustment has no legislative power and cannot by its order amend or repeal any zoning ordinance, rule or regulation."
[4] Our per curiam on motion for rehearing in Davis, by some misadventure, was not included as part of the official opinion of this court in the reporter system, but still awaits publication. The per curiam, nevertheless, is "reduced to writing and filed in the cause"as constitutional provision and rule of procedure require of a judicial decision of the court of appeals and so integrally with the original opinion govern as the appellate judgment in Davis. Mo. Const. Art. V § 12, as amended August 3, 1976; Rule 84.16(a).
[5] In view of the peremptory requirement of ordinance § 39.446(I)(A) that all of a parking lot shall be within 500 feet of a commercial zone, the proper resort for the defendants to enable the contemplated use for that purpose of land beyond the 500-foot maximum was an application to the Board of Zoning Adjustment for an area variance, rather than for a special use permit. One Hundred Two Glenstone, Inc. v. Board of Adjustment of City of Springfield, 572 S.W.2d 891, 893[1-6] (Mo.App.1978); Waeckerle v. Board of Zoning Adjustment, 525 S.W.2d 351, 359[6, 7] (Mo.App.1975). It is not untoward to infer that the defendants adopted the special use permit course in order to evade the more rigorous showing required for an area, or nonuse, variance. Matthew v. Smith, 707 S.W.2d 411, 416[2] (Mo. banc 1986).
[6] Neither does the doctrine of the law of the case apply as to evidence on new issues introduced on the retrial by amended pleadings after remand. Williams v. Ford Motor Co., 454 S.W. 2d at 614[3-5]. On remand from Davis, the defendants as third-party plaintiffs brought actions against the City of Kansas City, Missouri and the Board of Zoning Adjustment as third-party defendants. The third-party action sought indemnification or alternatively, contribution from the third-party defendants on the theory that any adjudged liability to the plaintiffs by the defendants was only because they complied with the special use permit issued by the BZA.
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263 Pa. Super. 533 (1979)
398 A.2d 704
COMMONWEALTH of Pennsylvania
v.
John Paul FANT, Appellant.
Superior Court of Pennsylvania.
Submitted October 26, 1978.
Decided February 28, 1979.
*534 Louis R. Dadowski, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Before PRICE, HESTER and LIPEZ, JJ.
*535 LIPEZ, Judge:
Following a jury trial on October 18, 1977, appellant was convicted of robbery[1] and criminal conspiracy.[2] Post trial motions were denied and appellant was sentenced to ten to twenty years imprisonment for robbery. Sentence was suspended on the conspiracy count. In this appeal appellant contends that his trial counsel was ineffective for two reasons. First, that counsel was ineffective for failing to demur to the robbery charge allegedly because the Commonwealth failed to present sufficient evidence to sustain a conviction on this count. Second, he contends that counsel was ineffective for failing to demur to the conspiracy charge when counsel knew, prior to appellant's trial, that appellant's only alleged co-conspirator had been acquitted of conspiracy. We find no merit in appellant's first argument and therefore affirm his robbery conviction. We agree that appellant's counsel was ineffective for failing to demur to the conspiracy charge and, therefore, reverse the judgment of sentence on this count.
In determining whether appellant was denied effective assistance of counsel, we must make an independent review of the record.
[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis. [Footnote omitted.]
*536 Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967). In applying this standard, we must first determine whether the claim which the attorney did not raise had some reasonable basis. Only if the claim which was foregone was arguably of merit must we inquire into counsel's reasons for not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977).
We shall first consider appellant's contention that the evidence presented by the Commonwealth was insufficient to prove that appellant was an accomplice to robbery. The test for determining sufficiency of the evidence is whether, accepting as true all evidence and reasonable inferences deducible from such evidence upon which the trier of fact could have based a verdict, the evidence and inferences are sufficient in law to prove every element of the crime charged beyond a reasonable doubt. Furthermore, we must review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976).
To prove appellant guilty as charged the Commonwealth had to show the following: (1) That a robbery occurred involving infliction or threatened infliction of serious bodily injury upon the victim, 18 Pa.C.S. § 3701(a)(1)(i and ii) (as amended 1976); and (2) that defendant, with the intent of promoting or facilitating the commission of that robbery, solicited another person to commit it, or aided or agreed, or attempted to aid another person in the planning or commission of that offense, 18 Pa.C.S. § 306. Upon consideration of the record, we conclude that the Commonwealth clearly met its burden of proof in this case.
At trial, the police officer who interrogated appellant testified that appellant told him that on January 18, 1977, appellant and one Gary Nelson, while at a bar, decided to rob Jessie Cash, a friend of appellant.[4] Other testimony at trial revealed that, later that same day appellant and Nelson *537 had gone to Cash's residence. They were admitted by one of Cash's tenants. Appellant then asked to speak to Cash, but was informed by the tenant that Cash was upstairs asleep. Appellant and Nelson refused to leave without first speaking to Cash, so the latter was summoned. When he came downstairs, Nelson demanded money from him while appellant stood by silently, rocking back and forth. Cash refused Nelson's demand for money whereupon Nelson drew a gun and opened fire on Cash. Cash fled upstairs but was shot once. Nelson then fired a shot at another of Cash's tenants after which appellant and Nelson fled the scene.
Appellant took the stand at trial. He admitted being with Nelson on the day of the robbery, but denied admitting to the police that he and Nelson had agreed to rob Cash.
The credibility of witnesses is for the finder of fact to determine; the jury is free to believe all, part, or none of the evidence. Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053 (1977). It is the responsibility of the factfinder to reconcile conflicts in the evidence; this is particularly appropriate where conflicts arise from statements made by the accused. Duncan, supra, 473 Pa. at 68, 373 A.2d at 1054. Here the jury obviously chose to believe the police officer's testimony as to appellant's pre-trial confession rather than appellant's testimony at trial.
It is obvious that the evidence adduced at trial, which showed presence, flight, and appellant's confession was sufficient to convict defendant of robbery on a theory of accomplice liability.[5] Appellant's counsel was, therefore, not ineffective for failing to demur to the robbery charge because such a motion would have been futile.
Appellant next contends that his trial counsel was ineffective for failing to demur to appellant's conspiracy charge. Appellant's co-conspirator had been acquitted of conspiracy three months prior to appellant's trial and yet failed to demur to appellant's conspiracy charge.
*538 Where there are only two named co-conspirators in the information or indictment, and one is acquitted, the other cannot be convicted. Commonwealth v. Campbell, 257 Pa.Super. 160, 390 A.2d 761, 762 (1978). We can perceive no reasonable legal basis for appellant's attorney's failure to demur to the conspiracy charge. Therefore appellant must be discharged as to that count.
The judgment of sentence on appellant's conviction of robbery is affirmed. The judgment of sentence on the conspiracy conviction is reversed and appellant is discharged as to that count.
NOTES
[1] Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended June 24, 1976, 18 Pa.C.S. § 3701 (Supp. 1978). Appellant was convicted of robbery on a theory of accomplice liability. See Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 306.
[2] 18 Pa.C.S. § 903.
[4] The admissibility of appellant's statements to the police is not at issue.
[5] One who participates in a crime is legally responsible not only for his personal acts, but also for the acts of others committed in furtherance of the crime. Commonwealth v. Bryant, 461 Pa. 309, 336 A.2d 300 (1975).
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761 S.W.2d 725 (1988)
Loretta YOUNG, Appellant,
v.
STATE of Missouri, Respondent.
No. 54267.
Missouri Court of Appeals, Eastern District, Division Five.
November 15, 1988.
Motion for Rehearing and/or Transfer Denied December 14, 1988.
Application to Transfer Denied January 17, 1989.
*726 Ilene A. Goodman, St. Louis, for appellant.
William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied December 14, 1988.
PUDLOWSKI, Chief Judge.
Movant, Loretta Young, challenges the denial of her motion to vacate, set aside, and correct sentence and judgment under Supreme Court Rule 27.26, following a jury trial and conviction for capital murder for which appellant was sentenced to life imprisonment. This court affirmed the conviction on direct appeal in State v. Young, 610 S.W.2d 8 (Mo.App.1980).
An original pro se motion under Rule 27.26 was filed on September 29, 1978 but dismissed on February 14, 1979 without prejudice. A second 27.26 motion was filed on March 11, 1985 which was denied on August 26, 1985 without a hearing. Movant appealed and the order was reversed and remanded for an evidentiary hearing. Young v. State, 724 S.W.2d 326 (Mo.App. 1987). An evidentiary hearing was held on December 1, 1987 at which time movant testified that trial counsel had ineffectively assisted her during her original trial in 1978. This 27.26 motion was taken under submission and later denied on December 3, 1987. This appeal followed.
Movant raises three points on appeal. Appellant first contends that the trial court erred when it failed to make findings of fact on each and every issue presented as required by Rule 27.26. Movant argues that the trial court refused to issue findings on the following points of her motion: 1) that trial counsel was ineffective for failing to file a writ of prohibition to stop the criminal proceedings against her because the Missouri Supreme Court had ruled the statutes under which appellant was charged were unconstitutional and in violation of the eighth and fourteenth amendments; 2) that the indictment filed against her was insufficient because the indictment did not contain any reference to any unlawful acts; 3) that counsel was ineffective for failing to object to certain jury instructions, in that the instructions referred to appellant acting with Willie Jean Carter, when there was no evidence introduced at trial that Carter was involved, arrested, or committed the offense charged; and 4) that it was erroneous for the court not to give the jury legal definitions of words used in the instructions such as feloniously, willfully and malice aforethought.
Our review is limited to a determination of whether the findings, conclusions and judgment of the trial court below are clearly erroneous. Rule 27.26(i); Daniels v. State, 751 S.W.2d 399, 401 (Mo.App.1988). On such a motion a "prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence." Rule 27.26(f).
Rule 27.26(i) provides that "[t]he court shall make findings of fact and conclusions of law on all issues presented." This rule merely means that generalized findings of fact are adequate if they are sufficient to enable the appellate court to review movant's contentions. Seltzer v. State, 694 S.W.2d 778, 779 (Mo.App.1985). Turning to the alleged defects in the trial court's findings and conclusions we can find no error.
In regard to whether counsel was ineffective for failing to file a writ of prohibition, *727 appellant failed to raise this issue at the hearing. The trial court cannot be found to have committed error for failing to make conclusions of law on issues not presented during the hearing. Holzer v. State, 680 S.W.2d 764 (Mo.App.1984).
Turning to the sufficiency of the indictment, appellant also failed to offer any evidence concerning the omission of the word "unlawfully" from the indictment. The only evidence concerning this matter were appellant's own statements that she did not see the word "unlawful" in the indictment. A review of the indictment reveals that the word "unlawfully" does appear on the face of the indictment. An indictment is sufficient when it "contains all of the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution." State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1981). This indictment is sufficient.
Concerning counsel's failure to object to certain jury instructions, these allegations are generally not reviewable in a 27.26 motion. The general rule is that instructional error is not cognizable in a 27.26 proceeding unless the error rises to the level of a constitutional error. Atkins v. State, 741 S.W.2d 729 (Mo.App.1987). Movant's claim concerning the instruction which attributed the crime not only to movant but also to Willie Jean Carter has previously been before this court on direct appeal. In State v. Young, 610 S.W.2d 8, 13 (Mo.App.1980), this court previously held that the submission of the instruction was proper. Once a point has been considered on direct appeal it may not be reconsidered in a post conviction proceeding. Rule 27.26(b)(3); Wilhite v. State, 615 S.W.2d 506 (Mo.App.1981). The other alleged instructional error does not rise to the level of a constitutional error. We find that appellant's first point is without merit.
Movant's second contention is that the trial court erred in finding that trial counsel was not ineffective. Movant alleges that counsel was ineffective because counsel waived an instruction on felony murder at trial denying her due process, fair trial and effective assistance of counsel as provided for in the constitution. During the instruction conference, trial counsel, the prosecution and the trial court, all agreed that evidence of movant's participation in the robbery was so slight that the first degree murder instruction could not have been supported. At this time, trial counsel waived the first degree murder instruction. This waiver is consistent with movant's own testimony that she did not participate in the robbery. Trial counsel concluded that it would be unreasonable to instruct on this lesser included offense. An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel. Love v. State, 670 S.W.2d 499 (Mo. banc 1984). Movant argues that Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980) should control our decision in this case. In Beck, the Supreme Court held that a first degree murder instruction should be given with a capital murder instruction when the only other instruction is one for acquittal. The Supreme Court felt that this would prevent the jury from returning an unwarranted guilty verdict. In the case before us, however, sufficient procedural safeguards existed to ensure that movant's rights remained protected. Unlike the situation in Beck where the only alternative was acquittal, the jury in this case was also given instructions on second degree murder and manslaughter, thus, reducing the possibility of an unwarranted verdict. Movant suggest that had the first degree murder instruction been offered they would have returned a verdict on that instruction. This court cannot speculate nor can the movant speculate as to what the jury might have done if the instruction on first degree murder, had been given and for that reason find that defendant was not denied effective assistance of counsel. Mercer v. State, 666 S.W.2d 942, 946 (Mo.App.1984).
Movant's final contention is that she was not afforded effective assistance of counsel because trial counsel failed to contact *728 or call three possible defense witnesses. Ordinarily, the choice of witnesses and defense tactics are matters of trial strategy and will not support a claim of ineffective assistance of counsel. Jackson v. State, 729 S.W.2d 253 (Mo.App.1987).
Nothing in the record indicates that these witnesses were willing to testify or even if they could be found to testify. Movant admitted during the evidentiary hearing that trial counsel informed her that she could not locate one of these witnesses. It is the movant's burden in a Rule 27.26 proceeding to prove that the witnesses could have been located through reasonable investigation, the witnesses if called would have testified, and that the testimony would have provided a viable defense. Stidum v. State, 736 S.W.2d 477 (Mo.App. 1987). Movant did not meet this burden at the evidentiary hearing. This point is therefore without merit.
The judgment of the motion court is affirmed.
CARL R. GAERTNER, J., and SIMEONE, Senior Judge, concur.
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131 F.2d 985 (1942)
UNITED STATES
v.
FIRST NAT. BANK, ALBUQUERQUE, N. M.
No. 2557.
Circuit Court of Appeals, Tenth Circuit.
November 2, 1942.
*986 Paul A. Sweeney, Atty., Department of Justice, of Washington, D. C. (Francis M. Shea, Asst. Atty. Gen., Everett M. Grantham, U. S. Atty., of Santa Fe, N. M., and K. Gill Shaffer, Asst. U. S. Atty., of Albuquerque, N. M., on the brief), for appellant.
Pearce C. Rodey, of Albuquerque, N. M., for appellee.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
This appeal presents the question whether under these facts the United States, as drawer and drawee of a treasury check, can recover the amount of same upon the guaranteed endorsement of an endorsee bank, which has paid the proceeds of the check on the forged endorsement of an impostor, to whom the drawer delivered the same under the mistaken belief that the impostor was the true payee named in the check, and entitled to receive the same.
This action by the United States against the bank is based upon the following undisputed facts. Pursuant to the World War Adjusted Compensation Act, Act of May 19, 1924, 43 Stat. 121, 38 U.S.C.A. § 591 et seq., the director of the veterans bureau issued to Harry T. Goulding, a World War veteran residing in Arizona, adjusted service certificate No. 1351291. By some means, apparently by theft, one Harry Wesley Ott came into possession of the said certificate, and representing himself to be Harry T. Goulding, the true owner of the certificate, Ott presented (apparently in person) the certificate, together with an application for a loan, to the veterans bureau at Albuquerque, New Mexico, as authorized by the World War Adjusted Compensation Act, supra, as amended March 3, 1927, 38 U.S.C.A. § 642, Subsections (i) to (m) incl., 44 Stat. 1389 and 46 Stat. 1429. In accordance with prescribed forms and regulations, Ott had been previously identified by a notary public for Bernalillo County, New Mexico, who attested on the prescribed form that "The person applying for the loan evidenced by the above note is known to be the veteran named in the adjusted service certificate referred to therein, and the signature on the above note is the signature of such veteran."[1] Relying upon such identification of Ott as the true owner of the certificate, Harry T. Goulding, the veterans' facility consummated the loan by accepting the certificate with the application for the loan, to which was appended a note in prescribed form, and by issuing a check for the amount of the authorized loan ($790.50), payable to the order of Harry T. Goulding, and delivering the same to Ott by mail addressed to Harry T. Goulding, El Fidel Hotel, Albuquerque, New Mexico, where Ott was registered in the name of the true veteran, Harry T. Goulding. The check was issued, mailed, and delivered to Ott on April 7, 1931. On the same date, Ott presented the check to the First National Bank at Albuquerque, New Mexico (herein called bank) for payment. An officer of the bank called the attesting notary public by telephone, ascertained that Ott was the same person whom the notary public had identified as the true owner, Harry T. Goulding, in the loan application. After checking other identifying documents in Ott's possession, the check was cashed on the endorsement of Harry T. Goulding, and the proceeds delivered to Ott under the mistaken belief that Ott was *987 Goulding. The bank endorsed the check "prior endorsements guaranteed," and negotiated the same to the Denver Branch of the Federal Reserve where it was paid in the regular course of business.
The fraud was discovered by the United States on April 13, 1937. Demand for reclamation was made on May 20, 1938, and thereafter refused. On October 10, 1938, the bank was notified that claim for reclamation "may be abandoned." On October 16, 1940, demand for reclamation was renewed and refused, and this suit was instituted to recover on the endorsement guaranty of the bank. The trial court gave judgment for the bank, applying the so-called impostor rule, and in the alternative held that the United States was guilty of laches which barred recovery and the United States has appealed.
By the appellant we are urged to hold that the question is judged by Federal law, and as so judged the transaction should be treated as a forgery, hence the endorsement guaranty of the bank was broken, and the government should recover on the guaranty of the endorsee, regardless of laches which cannot be imputed to it.
To what extent, if any, local law governs the rights and liabilities of the United States arising out of an obligation of the United States, or a transaction to which it is a party, has not been precisely defined. The question has received the attention, but not the decision, of the court of last resort. United States v. Bethlehem Steel Corporation, 315 U.S. 289, 62 S. Ct. 581, 86 L. Ed. 855; O'Dench, Duhme & Co., Inc., v. Federal Deposit Insurance Corporation, 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956; United States v. Clearfield Trust Company, 3 Cir., 130 F.2d 93, decided July 29, 1942. We do not deem it essential to the solution of our problem to go further than to say that this suit involves the rights and liabilities of the United States, arising out of an obligation which it has assumed in its governmental capacity. The obligation assumed is created and authorized by an act of Congress which, to some extent at least, has provided the manner and means by which the obligation shall be discharged. Clearly therefore, its rights and liabilities thereunder cannot depend upon local law except insofar as it has consented to be bound. Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 349, 60 S. Ct. 285, 84 L. Ed. 313; Deitrick v. Greaney, 309 U.S. 190, 60 S. Ct. 480, 84 L. Ed. 694; Royal Indemnity Company v. United States, 313 U.S. 289, 61 S. Ct. 995, 85 L. Ed. 1361; O'Dench, Duhme & Co., Inc., v. Federal Deposit Insurance Corporation, supra; United States v. Clearfield Trust Company, supra.
It must be conceded however that when the United States becomes a party to commercial paper, it impliedly consents to be bound by the same rules governing private persons under the same circumstances. Cooke v. United States, 91 U.S. 389, 23 L. Ed. 237; United States v. National Exchange Bank of Baltimore, 270 U.S. 527, 46 S. Ct. 388, 70 L. Ed. 717; Lynch v. United States, 292 U.S. 571, 579, 54 S. Ct. 840, 78 L. Ed. 1434; United States v. Guaranty Trust Company, 293 U.S. 340, 350, 55 S. Ct. 221, 79 L. Ed. 415, 95 A.L.R. 651; United States v. First National Bank of Prague, 10 Cir., 124 F.2d 484. Whatever label we give the rule, whether Federal or state law, it derives its substance from the law merchant, and since New Mexico has not spoken on the question, we are at liberty to assume that its courts as well as the Federal law, will follow the uniform law governing commercial transactions. To that extent, we shall fashion the rule from the "materials at hand."
It is of course patent that if the endorsement of the payee be treated as a forgery, the bank as subsequent endorsee acquired no rights under it, and it is liable on its guaranty unless the United States is by its laches precluded from asserting the guaranty. See Section 23 of the Uniform Negotiable Instruments Act. If however, the so-called impostor rule has application under the facts, there is no forgery, the guaranty is not broken, and the United States cannot recover.
In a recent case, United States v. First National Bank of Prague, supra, 10 Cir., 124 F.2d 484, 486, this court considered the imposter rule under somewhat similar facts. Based upon a review of many adjudicated cases (cited therein), we announced the prevailing rule as follows: "With few exceptions, it is held that the drawer of a check, bill of exchange, or other negotiable instrument, cannot recover from an intermediary bank on its endorsement, or from the payee bank upon its payment, where the check, bill, or other instrument is drawn and delivered to an imposter under the mistaken belief on *988 the part of the drawer that he is the person whose name he has assumed and to whose order the check, bill, or other instrument is made payable, and the intermediary bank acquires it from the impostor upon his endorsement thereon of the name of the payee, or the payee bank pays it upon such endorsement, as the case may be. Although not in full accord in respect of the reasons for their conclusion, most courts hold that while the drawer acts in the mistaken belief that the person with whom he deals either in person or by correspondence is the person whose name he has assumed and pretends to be, still it is the intent of the drawer to make the check, bill, or other instrument payable to the identical person with whom he deals and therefore to be paid on his endorsement; and that accordingly payment to him or his endorsee merely effectuates the intent of the drawer."
Some cases do not accept the thesis upon which the so-called impostor rule is based, United States v. Onondaga County Savings Bank, D.C., 39 F. 259; Onondaga County Savings Bank v. United States, 2 Cir., 64 F. 703; United States v. National Exchange Bank, 214 U.S. 302, 29 S. Ct. 665, 53 L. Ed. 1006, 16 Ann.Cas. 1184; United States v. Canal Bank & Trust Co., D.C., 29 F. Supp. 605. Other courts accept it but refuse to apply it under similar facts. United States v. National City Bank of New York, D.C., 28 F. Supp. 144; Cohen v. Lincoln Savings Bank, 275 N.Y. 399, 10 N.E.2d 457, 112 A.L.R. 1424. See also annotations, 22 A.L.R. 1228; 52 A.L.R. 1326. Cases which do not accept or refuse to apply the rule rely primarily on what was said in United States v. National Exchange Bank, supra, which did not mention or recognize the impostor rule under somewhat analogous facts. The decision there rested upon the question of whether the United States should be held to the rule that a drawee or the maker of a check should be held to know the genuineness of its own paper. We think the case must be considered in the light of what was said in United States v. Chase National Bank, 252 U.S. 485, 40 S. Ct. 361, 64 L. Ed. 675, 10 A.L.R. 1401, and United States v. National Exchange Bank of Baltimore, supra. See, also, Security-First National Bank v. United States, 9 Cir., 103 F.2d 188.
In United States v. First National Bank of Prague, supra, we left no room for doubt that in our view the impostor rule had application to transactions of the government in a proper case. The application of the announced rule was considered in connection with a check drawn by the United States in consummation of a loan on an adjusted service certificate, identical with the one here involved, and paid by the First National Bank of Prague, endorsed by it to the Tradesmens National Bank of Oklahoma City, and by it endorsed and negotiated to the federal reserve. We refused, however to apply the impostor rule as between the United States and the Prague bank which had first made contact with the impostor, and by such contact had unwittingly and unconsciously initiated the fraud which was subsequently perpetrated on the veterans' facility. The Prague bank accepted the impostor who held in his possession an adjusted service certificate which he had stolen from the true veteran. The officer of the bank, acting as a notary public, authenticated the application for the loan and mailed the same to the veterans' facility, giving the bank as the address of the impostor. The bank had negotiated a loan on the certificate and the check was mailed to the impostor in care of the Prague bank where it was paid on his forged endorsement impostor, and by this bank endorsed and negotiated to the intermediary correspondent bank in Oklahoma City, which also endorsed same for payment to the federal reserve. We held in these circumstances that since the issuance and the mailing of the check to the impostor by the veterans' facility was not the first act which made possible the loss, but on the contrary the bank first imposed confidence in the impostor and cooperated with him, thereby unwittingly contributing to the deception of the veterans' administration in respect to the vital matter of identity, and that since such cooperation constituted the initial act which resulted in the fraudulent transaction, the Prague bank was not entitled to the application of the impostor rule. As between the United States and this bank the transaction fell within the well established rule that as between two innocent persons, both of whom are victims of fraud, the burden must fall upon the one whose negligence first facilitated it and made possible the loss. We applied the rule as between the United States and the intermediary correspondent bank which had endorsed the check and negotiated the same to the federal reserve branch in the regular course of business.
*989 The facts here bring this case squarely within the impostor rule. It is said that the application of the impostor rule is based upon the intention of the drawer to make the check payable to the identical person with whom he deals, and that since under the statute, the disbursing agent for the veterans' facility had no authority to issue the check to any person other than the true veteran, it cannot be held to have intended to do otherwise. But if the intentions of the disbursing agent are to govern, shall they be discerned by what he thought he was doing because he could not legally do otherwise, or by what he physically and actually did in effecting his purposes and intentions.
Here the impostor was in possession of an adjusted service certificate. He undoubtedly obtained the prescribed forms for a statutory loan from the veterans' facility and personally presented the same to the facility, duly authenticated in prescribed form. He apparently came face to face with the disbursing agent who was convinced that the person who stood be fore him was Harry T. Goulding, the true and lawful owner of the certificate. The check was drawn and delivered by mail to the same person who made application for the loan and whom the veterans' facility intended should receive the same. The veterans' facility knew and intended that this same physical person to whom they had delivered the check would present it for payment upon the endorsement of Harry T. Goulding. It must be presumed that a check fraudulently obtained will be fraudulently used. When the check was presented to the bank by the person to whom it had been delivered, the bank ascertained that the same person had appeared before a notary public who had attested to his identity as Harry T. Goulding, and that the veterans' administration had relied upon this same means of identification in issuing the check. The bank had before it ample proof of the admission of the veterans' facility that the present holder of the check was in fact the identical person to whom it had been delivered as the true veteran, Harry T. Goulding. Doubtless, if the bank had called the disbursing agent who had issued the check, describing the person who was then presenting it for payment, the agent would have stated that he had delivered the check to the identical party as the true payee. In these circumstances, it cannot be doubted that the bank merely effectuated the purposes and intentions of the drawer.
Government checks are fluently employed in the commerce of the country, and are accepted upon reasonable identification in the regular course of business as other obligations of such character. If banks are to be made to use greater diligence than is shown to have been exercised here, the result is to destroy the free negotiability of the obligations of the United States government. We hold that the so-called impostor rule has application and the government cannot recover.
In view of what we have said, it is unnecessary to consider the question of laches further than to refer to what was said in that respect in United States v. First National Bank of Prague, supra, wherein we held that the government was not subject to the rule of laches under the same facts.
The judgment is affirmed.
NOTES
[1] Veterans' Administration Regulations 4698. "To Whom Loan May Be Made. Only the veteran named in the certificate can lawfully obtain a loan on his adjusted certificate * * *." Regulations 4699. "Identification. Before a loan is made on an adjusted-service certificate, the person applying therefor will be identified as the person entitled to the certificate offered as security. Such identification, if made in the United States or possessions, will be accepted if the certificate is made by a * * * any person who is legally authorized to administer oaths in a state * * *."
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263 Pa. Super. 424 (1979)
398 A.2d 209
COMMONWEALTH of Pennsylvania
v.
Lowell Mehaffey AGNEW, Appellant.
Superior Court of Pennsylvania.
Submitted October 23, 1978.
Decided February 15, 1979.
*426 Leonard G. Ambrose, III, Erie, for appellant.
Robert S. Bailey, Assistant District Attorney, Meadville, for Commonwealth, appellee.
Before CERCONE, WIEAND and HOFFMAN, JJ.
HOFFMAN, Judge:
This case involves a motor vehicle accident in which the survivor, appellant Lowell Mehaffey Agnew, was convicted of involuntary manslaughter. He now appeals, contending that there was insufficient evidence to sustain the conviction. We agree that the Commonwealth has not proved the requisite mens rea for involuntary manslaughter, and, therefore, we vacate the judgment of sentence and order Agnew discharged.
Accepting as true all of the Commonwealth's evidence and all reasonable inferences therefrom, the facts are as follows. At approximately 11:30 p.m. on the evening of October 4, 1975, Agnew, a farmer, had finished disking[1] a field owned by his father. To return home, he had to drive his tractor over Route 285 in Crawford County, Pennsylvania and pull the disk along behind him. Route 285 is a two-lane highway, 33 feet wide including the berm on either side. The road is bounded on the outside of either berm by guard rails. There is no municipal lighting in this rural stretch of the road. Agnew was aware of the characteristics of the road, having travelled it before.
*427 The tractor Agnew was driving was just under 11 feet wide, and was equipped with front headlights four feet apart, and front-flashing yellow lights on the top of the tractor cab. The disk was seventeen feet, four inches wide, was painted a dark green, and was not itself equipped with any lights or reflective devices. Agnew placed "Slow Moving Vehicle" signs on the tractor and the disk.
Proceeding westerly on Route 285 and approaching the intersection with McMichael Road, Agnew drove his tractor between 15 and 20 miles per hour. He saw an approaching automobile in the eastbound lane travelling about 55 miles per hour. Agnew slowed down the tractor and pulled over to the right, driving with his wheels on the berm, so that the disk was within a foot of the guard rails. The disk still encroached over the center line by one to two feet. The oncoming car was close to the center line, but never left its lane of traffic. The car never slowed down or changed its direction, although there was room for the car to pass safely. Realizing a collision was imminent, Agnew stopped the tractor, but as he did so, the car hit the outside of the disk. The car spun around several times and came to rest demolished. The driver and his passenger were killed. The disk came to rest approximately four feet into the eastbound lane.
During the course of his investigation, a State Trooper parked his car 100 feet away from the tractor and, with the aid of his headlights and the illumination of the blinking lights of the ambulance and the wrecking crew then on the scene, was able to see the tractor, but was unable to see the disk behind it. The Trooper was unable to notice anything behind the tractor until he came to within 30 or 40 feet of the tractor.
The state of mind, or mens rea, which characterizes involuntary manslaughter is recklessness or gross negligence: a great departure from the standard of ordinary care evidencing a disregard for human life or an indifference to the possible consequences of the actor's conduct. Commonwealth *428 v. Polimeni, 474 Pa. 430, 442, 378 A.2d 1189, 1195 (1977); Commonwealth v. Kominsky, 240 Pa.Super. 532, 539, 361 A.2d 794 (1976). The same standard applies to deaths caused by motor vehicle violations:
"Conduct made unlawful by the Motor Vehicle Code is not necessarily the kind of `unlawful act' included within the definition of involuntary manslaughter, for in many instances, the Code makes unlawful, acts of ordinary negligence. Hence, to sustain a conviction of involuntary manslaughter for a death resulting from an act which constitutes a transgression of the Motor Vehicle Code, it must be established that such violation . . . together with the surrounding circumstances, `evidences a disregard of human life or an indifference to consequences.'" Commonwealth v. Busler, 445 Pa. 359, 361, 284 A.2d 783, 784 (1971). See also Commonwealth v. Kaulback, 256 Pa.Super. 13, 18-20, 389 A.2d 152, 154-55 (1978); Commonwealth v. Trainor, 252 Pa.Super. 332, 337, 381 A.2d 944, 947 (1977); Commonwealth v. Greer, 232 Pa.Super. 448, 450, 335 A.2d 770 (1975). Thus, we have held the evidence insufficient to sustain a conviction for involuntary manslaughter where the driver of a motor vehicle was speeding,[2] was driving on the berm of the road,[3] was passing on the wrong side of the road under slippery conditions,[4] failed to yield the right of way at a stop sign,[5] and inattentively encroached upon the oncoming lane.[6]
We feel that the facts in the instant case also fail to show Agnew's disregard for human life or an indifference to the possible consequences of his actions. While the evidence shows that Agnew committed two summary offenses *429 under the Motor Vehicle Code[7] which were substantial factors in bringing about the accident, Commonwealth v. El, 255 Pa.Super. 597, 602, 389 A.2d 138, 140 (1978), this in itself is not sufficient to sustain a charge of involuntary manslaughter. Busler, supra. However, the Commonwealth argues that since Agnew drove his tractor at night knowing that the unlighted extremities of the towed disk would encroach upon the oncoming lane, the requisite mens rea was present. However, what must be shown is disregard for human life, and an indifference to consequences. Here the record shows that Agnew was quite aware of the risk he created and took positive steps to reduce the risk. He placed flashing yellow lights on the top of the tractor cab, placed warning signs on the tractor and disk, and proceeded at a low rate of speed. Obviously, as the opinion of the lower court concludes, "[t]he precautions were tragically inadequate." Still, the fact that Agnew took these precautions negates the requisite disregard of human life. Additionally, when Agnew perceived the oncoming car, he took every possible step to avoid a collision, pulling his tractor over to the right so far as the guard rails would allow by driving on the berm, and slowing his tractor down to a stop. This is not an indifference to potential consequences, but a conscientious attempt to reduce the risk of an accident. Unhappily, the oncoming car never saw the towed disk in his lane and drove into it at full speed. While a jury could find Agnew guilty of ordinary negligence and impose civil liability on him, we assume, his actions disprove the "disregard of human life and indifference to consequences" mens rea necessary to support the criminal charge of involuntary manslaughter.
Judgment of sentence vacated and the appellant discharged.
WIEAND, J., files a dissenting statement.
*430 WIEAND, Judge, dissenting:
I dissent and would affirm the judgment of sentence for the reasons stated in the opinion of the court below.
NOTES
[1] "Disking" consists of plowing and cultivating a piece of farmland, usually by pulling a wide, flat machine with a series of sharp, circular tools which dig up the ground below. The machine is called a "disk."
[2] Commonwealth v. Sisca, 245 Pa.Super. 125, 369 A.2d 325 (1976).
[3] Commonwealth v. Gochenaur, 234 Pa.Super. 588, 341 A.2d 163 (1975).
[4] Commonwealth v. Greer, 232 Pa.Super. 448, 335 A.2d 770 (1975).
[5] Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968).
[6] Commonwealth v. Trainor, 252 Pa.Super. 332, 381 A.2d 944 (1977).
[7] Act of April 29, 1959 P.L. 58, §§ 902(a) (maximum width of farm equipment), 1006 (yielding one-half of the roadway to oncoming vehicle), since repealed by the Act of June 17, 1976 P.L. 162, No. 81, eff. July 1, 1977; 75 Pa. C.S.A. § 101 et seq.
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502 F. Supp. 2d 845 (2007)
ALLAN BLOCK CORPORATION, Plaintiff,
v.
COUNTY MATERIALS CORP. and Champaign Concrete Company, Inc., Defendants.
Civil No. 05-2879 (JNE/JJG).
United States District Court, D. Minnesota.
April 26, 2007.
*846 *847 Kurt J. Niederluecke, Esq., and Darren B. Schwiebert, Esq., Fredrikson & Byron, PA, Minneapolis, MN, for Plaintiff Allan Block Corporation.
Gary A. Ahrens, Esq., Milwaukee, WI, and John C. Scheller, Esq., Michael Best & Friedrich LLP, Madison, WI, for Defendant County Materials Corp.
Frank S. Farrell, Jr., Esq., F S Farrell, LLC, Edina, MN, for Defendant Champaign Concrete Company, Inc.
ORDER
ERICKSEN, District Judge.
Allan Block Corporation brought this action against County Materials Corp. and Champaign Concrete Company, Inc., alleging claims of patent infringement and breach of contract.[1] The case is before the Court on the parties' request for construction of disputed claim terms pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996).
I. BACKGROUND
Allan Block owns the patent rights to U.S. Patent Nos. 4,909,010 ('010 Patent) and 5,484,236 ('236 Patent). The '010 Patent is entitled "Concrete Block for Retaining Walls" and the '236 Patent is entitled "Method of Forming Concrete Retaining Wall Block." Allan Block alleges that County Materials' blocks infringe several claims of the '010 and '236 Patents.
II. DISCUSSION
A. Claim construction principles
Patent claim construction is a matter of law for the court. Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996). Proper claim construction requires an examination of the intrinsic evidence of the record, including the claims, the specification, and, if in evidence, the prosecution history. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). The starting point for claim construction is a review of the words of the claims themselves. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc), cert. denied, 546 U.S. 1170, 126 S. Ct. 1332, 164 L. Ed. 2d 49 (2006); Vitronics, 90 F.3d at 1582 ("First, we look to the words of the claims themselves, both asserted and nonasserted, to define the scope of the patented invention."). The words of a claim are generally given their ordinary and customary meaning the meaning that the term would have to a person of ordinary skill in the art at the time of the invention. Phillips, 415 F.3d at 1312-13. "[T]he person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Id. In some cases, the ordinary and customary meaning is readily apparent; and in such cases, general purpose dictionaries may be helpful. Id. at 1314. The claims must be read in view of the specification, which is always highly relevant to claim construction. Id. at 1315. The specification may provide a special definition given to a claim term or a disavowal of claim scope by the inventor. Id. at 1316. The court may not, however, *848 import limitations found only in the specification. Id. at 1323; Electro Med. Sys. v. Cooper. Life Scis., Inc., 34 F.3d 1048, 1054 (Fed.Cir.1994). The court should also consider the patent's prosecution history, which provides evidence of how the United States Patent and Trademark Office and the inventor understood the patent. Phillips, 415 F.3d at 1317. The court, in its discretion, may also consider extrinsic evidence, though it is less reliable than intrinsic evidence. Id. at 1317-18. In most situations, however, intrinsic evidence will resolve any ambiguity in a disputed term, and it is improper to rely on extrinsic evidence when intrinsic evidence does so. Vitronics, 90 F.3d at 1583.
B. The patents-in-suit
1. The '010 Patent
Claim 1 of the '010 Patent reads as follows:
1. A concrete block for use in construction of retaining walls and the like, said block including:
a. bottom, top, rear, side and frontal surfaces,
b. said bottom, rear and side surfaces being generally planar and arranged generally normal to one another;
c. said top including a first support area defined over a predetermined area of said top for the support of additional blocks, a vertically extending shoulder adjacent said frontal surface of said block and extending entirely therealong to provide a continuous block positioning member in close association to said frontal surface and a second top surface at the uppermost end of said extending shoulder;
d. said frontal surface defining a lower vertical portion normal to said bottom and an upper, rearwardly inclined portion extending from said vertical portion terminating at said second top surface;
e. said support area and said vertical shoulder providing a locating surface to receive an additional vertically positioned block thereon wherein the additional block is positioned rearwardly from the front surface of the receiving and supporting block whereby a wall of tiers of such blocks extend rearwardly and upwardly from a support surface,
The phrase "said frontal surface defining a lower vertical portion normal to said bottom" appears in claim 1(d) of the '010 Patent. Allan Block asserts that "normal to" is commonly understood and needs no further construction. To the extent that construction is warranted, Allan Block urges the Court to adopt the following meaning:
The lower portion of the front surface must be normal to the bottom surface of the block, meaning that the plane of the lower portion must make an angle with the plane of the bottom surface that is approximately 90°. The lower portion need not abut the bottom surface in order for the lower portion to be normal to the bottom surface.
County Materials asserts that this phrase should be construed as "the frontal surface has a lower vertical portion which is normal to (i.e., intersects to form a right angle with) the bottom surface."
The Court determines that the ordinary meaning of the disputed language is readily apparent. Claim 1 recites bottom, top, rear, side and frontal surfaces; said bottom, rear and side surfaces being generally planar and arranged generally normal, to one another. Further, the claim language requires that the block have a lower vertical portion of the frontal surface that *849 is "normal to" the bottom surface. The parties agree, at least in part, that "normal", "forming a right angle" or "right-angled." The parties dispute whether the language "normal to" also requires the surfaces to abut. The Court notes that by definition an "angle" is formed by two lines extending from the same point. See Merriam-Webster's Collegiate Dictionary 44 (10th ed.2001). Because the claim language expressly requires that the lower vertical portion of the frontal surface form a right angle with (be normal to) the bottom surface, the two surfaces necessarily meet. Or in other words, the surfaces must abut. See id. at 5 ("abut . . . 1: to touch along a border or with a projecting part . . . 2a: to terminate at a point of contact").
The specification supports a construction of "normal to" that requires the surfaces to abut. First, throughout the specification, the lower vertical portion of the frontal surface and the bottom surface are consistently depicted as meeting to form a right angle. For example, FIGS. 1, 4, 6, and 7, illustrate views of the block wherein the frontal and bottom surfaces abut to form a right angle. The specification also contrasts two different embodiments of the concrete block, one where the end (side) surfaces and the front surface are "in normal arrangement" to each other (forming a right angle), and a second embodiment where the end (side) surfaces "converge inwardly" (forming an acute angle).[2] The specification provides:
The block 10 is generally rectangular in shape and of a predetermined height and, as best illustrated in the side elevation of FIG. 4 includes a bottom surface 15, a rear side 16, a frontal surface consisting of a rearwardly and upwardly directed portion 17a and a vertical portion 17b and end surfaces 18-19 in normal arrangement to the frontal surface 17b or which may be angularly arranged thereto as will be further described with consideration of form 12.
'010 Patent, col. 3, ll. 48-56.
In order to form a curved front surface the sides 18-19 may be directed to converge inwardly as illustrated by the dotted line configuration, designated 12 in FIG. 3. Obviously this same modification could be provided to include sides 18-19 which would converge in a forward direction such that curvilinear effects of both convex and concave design would be attainable. This requires a slight modification from the normal side elements in the straight line arrangement.
Id. at col. 5, ll. 14-22. Allan Block argues that the above-cited portions of the specification demonstrate that "normal" is used only to refer to the angle formed by the two surface's planes and does not bear on whether the surfaces abut. The Court disagrees. First, the specification does not mention the surface's planes; instead, the specification discusses the relationship between the surfaces themselves. Second, both embodiments are depicted as having end (side) surfaces that meet with or abut the front surface. In one embodiment, the surfaces meet to form a right angle; in the other, the surfaces meet to form an acute angle. That both embodiments require the abutment of the end (side) and front surfaces is consistent with the definition of angle, which, as discussed above, requires that the surfaces meet.
The Court next looks to the prosecution history. Allan Block relies on the Hegle patent, U.S. Patent No. 4,512,685, which was cited during the prosecution of the '010 Patent. Figure 3A of the Hegle patent *850 shows a "ledge-forming surface" that is "approximately perpendicular" to a "front face," with a separate "bevel surface" in between the "ledge-forming surface" and "front face" that prevents those two surfaces from touching. While the prosecution history of the '010 Patent illustrates that surfaces that are "perpendicular" need not necessarily abut, the Hegle patent does not use the term "normal to." Thus, consideration of the Hegle patent does not change the ordinary and customary meaning of "normal to" as used in the '010 Patent.
Consistent with the claim language, the specification, and the prosecution history, the Court concludes that the ordinary and customary meaning of "normal to" as used in claim 1 of the '010 Patent requires that two surfaces meet to form a right angle. Accordingly, the Court construes "said frontal surface defining a lower vertical portion normal to said bottom" as follows: "the frontal surface has a lower vertical portion which is normal to (i.e., abuts to form a right angle with) the bottom surface."
2. The '236 Patent
Claims 1 and 16 of the '236 Patent read as follows:
1. A method of creating a construction block adapted to form retaining walls or the like, comprising the steps of:
(a) forming a member having a major upper surface and a major lower surface and a plurality of edges, said upper major surface having a ridge extending laterally across a midsection thereof between an opposed pair of said edges with said ridges extending upwardly and away from said upper major surface by a predetermined first dimension, said lower major surface having a notch extending laterally across a midsection thereof between said opposed pair of edges with said notch extending upwardly from said lower major surface by a dimension substantially equal to said predetermined first dimension, wherein said laterally extending ridge is parallel to and disposed vertically above said laterally extending notch; and
(b) splitting said member along a center of both said ridge and said notch to define a pair of said construction blocks, wherein each said construction block has rough textured front surface defined by splitting the member in half, a recess extending laterally thereunder, and a lip extending laterally thereover wherein the height of said lip is substantially equal to the depth of said recess.
16. The method of creating a construction block adapted to form retaining walls or the like comprising the steps of:
(a) preparing a mold box for receiving raw concrete with the mold box having opposed front and rear walls and opposed side walls and with the opposed lateral side walls having parallelly disposed horizontally aligned rectangular core bar receiving openings formed along the lower edges thereof;
(b) inserting an elongated rectangular core bar within said mold box extending between said parallelly disposed horizontally aligned openings for forming a notch;
(c) loading raw concrete within said mold box while forming cores within said raw concrete along a vertical axis normal to the axis of said core bar to form a member having a major upper surface and *851 major lower surface and a plurality of edges, said major upper surface formed with a ridge; and
(d) splitting said member along a center of both said ridge and said notch to define a pair of said construction blocks, wherein each said construction block has rough textured front surface defined by splitting the member in half, a recess extending laterally thereunder, and a lip extending laterally thereover wherein the height of said lip is substantially equal to the depth of said recess.
The phrase "wherein the height of said lip is substantially equal to the depth of said recess" appears in claims 1(b) and 16(d) of the '236 Patent. Allan Block asserts that "substantially equal" is a commonly understood term and needs no further construction. To the extent that construction is warranted, Allan Block urges the following meaning: "The height of the block's lip must be equal to, or within some amount of deviation from, the depth of the block's recess. This limitation does not impose a strict numerical boundary on the relationship between the lip height and the recess depth." Allan Block further argues that whether the height of the block's lip is "within some deviation from" the depth of the block's recess presents a question of fact. County Materials contends that the phrase means that "the height of the lip must be substantially equal to the depth of the recess," wherein "substantially equal" means "equal to one another within 1/16th of an inch."
Claims 1 and 16 of the '236 Patent require, in part, that the block be created so that the dimensions of the lip and the recess are such that "the height of said lip is substantially equal to the depth of said recess." The parties agree that the term "substantially" is a word of approximation, commonly used in patent claims to avoid a strict numerical boundary to a specified parameter. See Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1310-11 (Fed.Cir.2003) ("[T]he ordinary meaning of the phrase `generally parallel' envisions some amount of deviation from exactly parallel."); see also Playtex Prods., Inc. v. Procter & Gamble Co., 400 F.3d 901, 907 (Fed.Cir.2005). Here, "substantially" modifies the term "equal," thus allowing some amount of deviation from exactly equal. Nothing in the claim language requires a numerical limitation on the amount of deviation allowed.
The specification does not provide a special definition for the term "substantially" or the phrase "substantially equal." Nor does the specification place a strict numerical boundary on the relationship between the lip height and the recess depth. Instead, the specification provides a more general description of the relationship between, and the function of, the lip and the recess:
The back surface 52 of each lip 34 is smooth and vertical with respect to the upper major surface of block 40. Similarly, the vertical surface 54 of recess 48 is smooth as well and in combination with surface 52 provides for a tight fitting wall system and fast installation.
'236 Patent, col. 5, ll. 56-61.
The width "W" of core bar 20 directly corresponds to this setback "A" defined when the blocks 40 are stacked, where front surface 54 of each recess 48 is securingly abutted against the back surface 52 of the corresponding lip 34 of the block disposed thereunder.
Id. at col. 6, ll. 40-45.
When the blocks 70 are stacked such as shown in FIGS. 5 and 6, the tapered surfaces 74 and 78 of the corresponding *852 recesses 76 and ridges 72, respectively, are conforming and abut one another.
Id. at col. 6, ll. 57-60.
The preferred method invention disclosed realizes retaining wall blocks with an upper forward lip and a lower front recess which provides creating a sound structure which is not susceptible to shifting once embedded in an embankment. Thus, shifting of the retaining wall blocks once integrated into a retaining wall is inhibited.
Id. at col. 7, ll. 19-24.
The Court looks next to the prosecution history. County Materials argues that because the "substantially equal" limitation was added during the prosecution of the '236 Patent, it should allow for no more than some very minimal deviation from "perfectly or exactly equal" and that it should be construed as "equal to one another within 1/16th of an inch." The Court disagrees. Although the "substantially equal" limitation was added during the patent's prosecution, nothing in the '236 Patent or statements made during its prosecution specifies a numerical limitation on the permissible deviation between the lip height and the recess depth. County Materials offers no evidence from the prosecution history supporting the imposition of the strict plus-or-minus 1/16th inch limitation. Instead, County Materials relies on extrinsic evidence, such as industry standards, expert testimony, and Allan Block's production standards to support its argument that the lip height and the recess depth must be "equal to one another within 1/16th of an inch." The Court declines to consider this evidence, however, because the intrinsic evidence does not support construing "substantially equal" to require a strict numerical limitation on the relationship between the lip height and the recess depth.[3]See Playtex, 400 F.3d at 909.
Consistent with the claim language, the specification, and the prosecution history, the Court determines that the claim language creates no ambiguity and has a readily understood meaning. Accordingly, the Court declines to construe the phrase "wherein the height of said lip is substantially equal to the depth of said recess."
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT the disputed claim terms are construed as set forth in this Order.
NOTES
[1] Claims against Champaign Concrete Company, Inc., have been dismissed.
[2] The "normal" arrangement allows for the construction of a straight retaining wall. The "converged" arrangement allows for the construction of a curved retaining wall.
[3] Even if the Court were to consider County Materials' extrinsic evidence, the Court would reach the same result. The ASTM Industry Standards relied on allow for a permissible deviation of 1/8th inch for a block's overall dimensions for width, height, and length. Moreover, while Allan Block's production control standards require that each block used in a particular project vary by no more than 1/16th inch, it refers to a block's overall height. There is no evidence that either of these standards apply to the height of the lip or the depth of the recess.
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165 N.J. Super. 477 (1979)
398 A.2d 604
CARLOS DELGADO, PLAINTIFF,
v.
THE CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; KENNETH A. GIBSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEWARK; HUBERT WILLIAMS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NEWARK POLICE DEPARTMENT; ANTHONY BARRES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE CITY OF NEWARK; CHARLES ZIZZA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE OF THE CITY OF NEWARK, JAMES J. CAMPBELL, AND BRUCE VILET, POLICE OFFICERS OF THE POLICE DEPARTMENT OF THE CITY OF NEWARK, NEW JERSEY, DEFENDANTS.
Superior Court of New Jersey, Law Division.
Decided January 18, 1979.
*478 Mr. Bernard K. Freamon for plaintiff.
Mr. Matthew J. Scola, Assistant Corporation Counsel, for defendant.
MARZULLI, J.S.C.
This action arises out of the Hispanic disturbances which took place over the Labor Day weekend of 1974. Plaintiff alleges he was injured by police gunfire while observing the disturbance as an innocent bystander. Such gunfire, plaintiff alleges, was excessive under the circumstances and served to render the City of Newark, officials of the city, superior officers and the individual police officers who fired the shots liable in tort for the damages he sustained.
Plaintiff's case is grounded upon two distinct theories: negligence and 42 U.S.C.A. § 1983. All defendants move *479 for judgment at the end of plaintiff's case on that portion of the complaint which alleges a § 1983 violation.
Initially it must be stated that the New Jersey courts have jurisdiction concurrent with the federal courts to entertain a federal cause of action, and thus a claim under § 1983. See, e.g., Endress v. Brookdale, 144 N.J. Super. 109 (App. Div. 1976).
As to the substantive merit of plaintiff's § 1983 claim, a short history of the section is necessary. It provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
While this section was originally interpreted so as to exclude municipalities as "persons" under the statute (see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)), the Supreme Court has recently overruled Monroe v. Pape and has included municipalities as possible defendants within the purview of § 1983. Monell v. Department of Social Services, 436 U.S. 658; 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Monell court held that both local governments and local officials in their official capacity can be sued directly under § 1983 where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted by those who represent official policy. Id. at 98 S.Ct. 2036. Monell also held a local government cannot be held liable under § 1983 under the doctrine of respondeat superior the wrong alleged must be pursuant to an official regulation or custom of some nature. Id. at 98 S.Ct. 2036.
A spate of litigation in the federal courts sheds light on precisely what type of injuries can be redressed under § 1983. One problem that has caused difficulty is the confusion between *480 a common law tort actionable under state law and a constitutional deprivation under § 1983. The Supreme Court has not expanded the protection given to plaintiffs who allege constitutional deprivations. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the United States Supreme Court issued a major policy decision limiting the scope of § 1983. A majority there held that only specific constitutional guarantees of the bill of rights incorporated into the Fourteenth Amendment (i.e., liberty and property interests protected by the Due Process Clause) and substantive fundamental limitations on government action implicit in the liberty concept of the Fourteenth Amendment can form the basis for a § 1983 action. Id. 424 U.S. at 710, 96 S.Ct. at 1164, 47 L.Ed.2d at 419. According to the court, a broader interpretation would fly in the face of the Fourteenth Amendment:
If respondent's view is to prevail, a person arrested by law enforcement officers who announce that they believe such person to be responsible for a particular crime in order to calm the fears of an aroused populace, presumably obtains a claim against such officers under § 1983. And since it is surely far more clear from the language of the Fourteenth Amendment that "life" is protected against state deprivation than it is that reputation is protected against state injury, it would be difficult to see why the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle, would not have claims equally cognizable under § 1983.
It is hard to perceive any logical stopping place to such a line of reasoning. Respondent's construction would seem almost necessarily to result in every legally cognizable injury which may have been inflicted by a state official acting under "color of law" establishing a violation of the Fourteenth Amendment. We think it would come as a great surprise to those who drafted and shepherded the adoption of that Amendment to learn that it worked such a result, and a study of our decisions convinces us they do not support the construction urged by respondent. [424 U.S. at 698, 96 S.Ct. at 1159, 47 L.Ed.2d at 412]
The question of whether simple negligent conduct fits within § 1983 has not been resolved by the Supreme Court. Procunier *481 v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 54 L.Ed.2d 24 (1978). The Seventh Circuit, however, has held that simple negligence cannot rise to the level of a § 1983 constitutional cause of action. Bonner v. Coughlin, 545 F.2d 565 (7 Cir.1976). Bonner quotes extensively from the policy language in Paul v. Davis, supra, which limits the application of § 1983:
In Paul v. Davis, 424 U.S. 693, 699, 96 S. Ct. 1155, 1159, 47 L. Ed. 2d 405, the Supreme Court refused to hold that the due process clause of the Fourteenth Amendment and Section 1983 "make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state law tort claims." Bonner does not contend that the guards deliberately took his trial transcript in violation of the due process clause. Rather he asserts that their negligence permitted some one else to take it. As Paul explains, the Fourteenth Amendment does not extend to such a claim...
[h]ere the plaintiff has pointed to no specific constitutional guarantee against the negligence of the two prison guards, even though they may be tortfeasors under Illinois law. [at 566-567]
Turning to the present action, plaintiff's claim, pared to its essential elements, is that the City of Newark was negligent in hiring and training the officers who shot him, while the individual officers were negligent in using their weapons in such a way as to injure him. No claim of intentional behavior is alleged. As such, plaintiff's claim seems to fit squarely within the exclusionary rationale set out in Bonner, supra. Plaintiff's suit, grounded in negligence alone, cannot rise to a violation of § 1983, which requires a showing that the unconstitutional action was pursuant to an officially adopted policy, custom or regulation. Monell, supra 98 S.Ct. at 2036.
In the case at bar plaintiff has made no attempt to establish exactly which constitutionally protected right was violated by the police action. Rather, the case sounds in simple negligence. The requisite liberty or property interest *482 necessary to state a § 1983 claim simply does not exist. See Paul v. Davis, supra.
Motion for judgment on that portion of complaint granted as to all defendants.
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131 F.2d 23 (1942)
HAMMOND
v.
HULL et al.
No. 7871.
United States Court of Appeals for the District of Columbia.
Decided October 12, 1942.
*24 Mr. George W. Dalzell, of Washington, D. C., for appellant.
Mr. John L. Laskey, Assistant United States Attorney, with whom Mr. Edward M. Curran, United States Attorney, both of Washington, D. C., was on the brief, for appellees.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.
MILLER, Associate Justice.
Appellant became a Foreign Service Officer of the United States on or about March 22, 1939. He served as Vice-Consul in Vienna from April 3, 1939 to October 31, 1939; as Vice-Consul in Leipzig, from November 1, 1939 to February 21, 1940; he was then transferred to the Foreign Service Officers' Training School at the Department of State in Washington, D. C., from which he was graduated in June, 1940. From June, 1940 until December 27, 1940, he was assigned to duty in the Division of Cultural Relations of the Department of State. From December 27, 1940 until the filing of his complaint in the present case, appellant was on leave of absence. Under date of March 7, 1941, he was officially notified that he had been given an efficiency rating of unsatisfactory. In a letter of the same date, he was assigned as Vice-Consul at Montreal and instructed to proceed to that post upon the expiration of his leave of absence. He was also notified that after a reasonable period of service at his new post, his rating would be further considered. On March 14, 1941, appellant acknowledged receipt of the foregoing notification of rating. In the same letter he served notice upon appellee Shaw "that the purported rating of me as `unsatisfactory' is strictly illegal." In a letter dated March 16, 1941, appellant notified appellee Hull that unless he was informed not later than 1:00 P.M. on March 18, 1941 "whether the Department desires an amicable adjustment without litigation, * * *" he would instruct his attorneys to institute an action. On March 18, 1941, before the expiration of his leave, appellant filed his complaint in the present case; seeking mandatory[1] and injunctive relief, and a judgment declaring appellant's rights, together with a motion for temporary restraining order. On March 24, 1941, appellees moved to strike the complaint and to dismiss it. On March 29, 1941, the District Court found that appellant's complaint was redundant and prolix and, hence, might properly be stricken, but it avoided basing its decision on that ground and, instead, *25 granted the motion to dismiss on two grounds, first, because the suit was prematurely brought and, second, because the complaint failed to state a cause of action for the relief prayed by appellant. Judgment dismissing the complaint and denying appellant's motion for temporary restraining order was filed on March 31, 1941. This appeal followed.
The remedy which, before adoption of the new Rules of Civil Procedure, was known as mandamus, is available under the new rules[2] and is governed by the same principles as formerly governed its administration.[3] Those principles may be briefly summarized as follows: (1) The writ should be used only when the duty of the officer to act is clearly established and plainly defined and the obligation to act is peremptory.[4] (2) The presumption of validity attends official action, and the burden of proof to the contrary is upon one who challenges the action.[5] (3) Courts have no general supervisory powers over the executive branches or over their officers,[6] which may be invoked by writ of mandamus. Interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief.[7] (4) When the performance of official duty requires an interpretation of the law which governs that performance, the interpretation placed by the officer upon the law will not be interfered with, certainly, unless it is clearly wrong and the official action arbitrary and capricious.[8] (5) For it is only in clear cases of illegality of action that courts will intervene to displace the judgments of administrative officers or bodies.[9] (6) Generally speaking, when an administrative remedy is available it must first be exhausted before judicial relief can be obtained,[10] by writ of mandamus or otherwise.
The judgment of the District Court dismissing appellant's complaint must be affirmed unless the action of appellees was clearly a violation of some provision of law, or unless they failed to observe and carry out the procedure provided by law.[11]*26 The pertinent sections of the statute are found in Title 22 of the United States Code; particularly Sections 23f, g, h, i.[11a] In Section 23h it is provided that: "* * * Not later than November 1, at least every two years, the Division of Foreign Service Personnel shall, under the supervision of the Assistant Secretary of State, prepare a list in which all Foreign Service officers shall be graded in accordance with their relative efficiency and value to the service. In this list officers shall be graded as excellent, very good, satisfactory, or unsatisfactory, with such further subclassification as may be found necessary."
Appellant relies upon the following sentence, which appears in Section 23h: "* * * No charges against an officer that would adversely affect his efficiency rating or his value to the service, if true, shall be taken into consideration in determining his efficiency rating except after the officer shall have had opportunity to reply thereto." Assuming that charges had been made against appellant, still, his complaint and exhibits demonstrate not only that an opportunity was given him to reply, but that he did reply. In his complaint appellant alleged: "9. Immediately after this interview of October 31, 1940 with the said Berle plaintiff under the direction of counsel and friends proceeded to collate such ex parte proof as was available to him to show the falsity and viciousness of these two alleged stories and appended this material and the affidavits in support thereof to an affidavit of his own verified November 14, 1940 and transmitted the same forthwith to the Division of Foreign Service Personnel as he had been requested on November 8, 1940 so to do by the defendant Shaw. Said affidavits to which plaintiff refers are all contained in Exhibit A already referred to in paragraph 8 hereof, which Exhibit A demonstrates fully the falsity of the two stories related to plaintiff by the said Berle." Exhibit A, to which reference is made, includes (1) the following letter, dated November 14, 1940, from appellant to appellee Shaw: "Dear Mr. Shaw: Enclosed herewith is a copy of an affidavit which I have executed in reply to certain charges against me which I understand are under consideration by the Division of Foreign Service Personnel. Originals of certain other affidavits are attached to my enclosed affidavit, which may be necessary for my further use in this matter. If such further use should ever be necessary, I reserve the right to call for the originals of these affidavits. Very sincerely yours, Ogden H. Hammond, Jr." [Italics supplied]; (2) an affidavit executed by appellant which occupies eleven pages in the record; (3) an affidavit executed by Lilly Stein; (4) an affidavit executed by Grace Vanderbilt Stevens; (5) an affidavit executed by Adelaide Whitehouse; (6) a letter from appellant to appellee Berle, reading as follows: "Dear Mr. Berle I have rarely been so touched as by your kindness in handling this nasty mess. The fact that I have taken up so much of your time and that you have been worried about this matter since February is something that I shall not lightly forgive myself for that any irresponsible behavior of mine should occupy your mind in times like these gives me the only guilty feeling I have in this entire matter. I have only asked for time in this affair in order to be perfectly composed and to finish this slur on something beyond my career. Again I shall never forget this and only hope that in some way, however small, some day I shall be able to repay it. Sincerely, Ogden H. Hammond, Jr."
Appellees' position is that appellant's rating of unsatisfactory was the result of a review of his service record and not of charges. The District Court found that: "No charge was filed by or before the Board of Foreign Service Personnel against the plaintiff that adversely affected his efficiency rating or his value in the service or otherwise." This finding is amply supported by appellant's Exhibit G, which was attached to his complaint, a letter dated March 7, 1941, from appellee Shaw to appellant which reads in part as follows: "It has been determined from a review of your record as a foreign service officer that your efficiency rating is unsatisfactory * * *." [Italics supplied]
Appellees concede that an efficiency rating of unsatisfactory based on charges against a foreign service officer could only be made after the officer had been accorded a hearing on the charges. They probably concede too much. The statute provides merely that "the officer shall have had opportunity to reply thereto." [Italics supplied] Opportunity to reply does not necessarily contemplate a *27 hearing.[12] The spirit and purpose of the particular law here involved would seem to require that at this stage of administrative proceedings a hearing, in the sense contended for by appellant, was not intended.[13] This conclusion is strengthened by the provisions of Section 23i, in which the following language appears: "Whenever [1] it is determined that the efficiency rating of an officer is unsatisfactory, thereby meaning below the standard required for the service, [2] and such determination has been confirmed by the Secretary of State, [3] the officer shall be notified thereof, [4] and if, after a reasonable period to be determined by the circumstances in each particular case, [5] the rating of such officer continues to be found unsatisfactory [6] and such finding is confirmed by the Secretary of State after a hearing accorded the officer, [7] such officer shall be separated from the service * * *." [Numbers in brackets and italics supplied] It seems obvious, upon careful reading of the foregoing language, that no hearing, of the kind contended for by appellant, is contemplated by the statute prior to the happening of the first five events. Only after the time arrives when, because of a continuing unsatisfactory rating, there is danger of separation of an officer from the service, does the statute provide for a hearing. At this point the permanent character of his service and his security of position are challenged. Consequently, he is then given an opportunity to present his case at a hearing and have it passed upon by the Secretary. This is a procedure which should be availed of only as a last resort. Prior to that time the good of the service requires avoidance of an open issue, publicly contested, between the Department and the officer. So long as there is any reasonable possibility of harmonious relationship between such an officer and the Board of Foreign Service Personnel, their negotiations should be carried on without publicity, without charges or hearings.
The history of legislation affecting the foreign service reveals a definite purpose to provide security of tenure and to encourage career service on a substantial basis.[14] But the history and tradition of the service also discloses the necessity for the highest possible standards of performance; that the selection and training of its officers must emphasize intelligence, good judgment, discretion, and a capacity for assumption of responsibility of which many persons are incapable.[15] It is obvious that *28 in this profession, as in others, mistakes will be made even by men of real capacity and of ideal temperament. In this profession, as in others, mistakes must bring discipline; and errors sometimes provide the basis for learning, just as surely as do the successes of professional life.
Putting a promising young professional man upon probation, following unwise or indiscreet actions, may well become an essential part of the process of training. His capacity to take such discipline and come up smiling may be one of the most revealing evidences of his worth to the service. Recalcitrancy, insolence and an inclination to challenge the authority of those who are in charge of that process may be most revealing of his incapacity and lack of fitness for the service. The discovery and appraisal of those intangibles of intelligence, temperament and good judgment, which are so vital in carrying on our foreign relations, can best be accomplished by informal procedures and informal contacts between the individual officer and the Division of Foreign Service Personnel. It is inconceivable that the morale of such an organization could be maintained on a proper basis if each young officer, in process of adjustment to a life which must of necessity be full of stresses and strains, could challenge the Division heads at each step of the process and require a public hearing, representation by counsel and all the elaborate ritual of trial and judicial determination, whenever he and his superior officers disagreed as to the manner in which his work should be done. And, consequently, it is inconceivable that Congress should have intended Section 23i to be so interpreted as to permit such a result.[16] The statute reveals clearly that the work of foreign service officers is of a highly confidential character.[17] The selection, training and classification of officers in this service must necessarily be done with great care. Section 23h expressly provides that: "The correspondence and records of the Division of Foreign Service Personnel shall be confidential except to the President, the Secretary of State, the members of the Board of Foreign Service Personnel, the Assistant Secretary of State supervising the division, and such of its employees as may be assigned to work on such correspondence and records."
In the present case, although the allegations of appellant's complaint charge malice, fraud, and other improper motives, the exhibits attached to the complaint reveal an entirely different situation. But, in any event, so long as the interpretation placed by an administrative officer upon the law is a reasonable one,[18] and so long as his conduct is both within the scope of his authority[19] and lacking in the elements of caprice and arbitrariness, his motive is immaterial.[20] In other words, the apparent incongruity of malicious performance of duty, assuming that malice actually exists, is not sufficient to deprive the performance of duty of its official character or to subject the officer to judicial interference in either his public or his private capacity. The attempt, in the present case, to establish a cause of action against appellees as individuals, on the *29 theory that they were not acting in their official capacities, depends upon too obvious a fiction to merit serious consideration.[21]
We conclude, therefore, that regard for both the letter and the spirit of the statute requires affirmance of the District Court's decision.
Affirmed.
NOTES
[1] "Wherefore Plaintiff Demands: * * * 2. A final mandatory order commanding and directing defendants (1) to accord plaintiff his full statutory and constitutional rights under Sections 23h and 23i of Title 22 of the United States Code [22 U.S.C.A. §§ 23h, 23i] and (2) to determine after full hearing accorded plaintiff the truth or falsity of the two alleged stories concerning plaintiff, that is to say, (a) whether plaintiff did in fact mimick the President of the United States as charged, and (b) whether the plaintiff did in fact have disloyal dealings with one Lilly Stein, an alleged female agent of a foreign government."
[2] Fed.Rules Civ.Proc., Rule 81(b); National Bondholders Corp. v. McClintic, 4 Cir., 99 F.2d 595, 598.
[3] George Allison & Co., Inc., v. Interstate Commerce Commission, 70 App.D. C. 375, 376, 107 F.2d 180, 181; Levine v. Farley, 70 App.D.C. 381, 383, 107 F.2d 186, 188.
[4] United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543, 57 S. Ct. 855, 81 L. Ed. 1272; Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 219, 50 S. Ct. 320, 74 L. Ed. 809; United States ex rel. White v. Coe, 68 App.D. C. 218, 219, 95 F.2d 347, 348, and authorities there cited; Brunswick v. Elliott, 70 App.D.C. 45, 49, 103 F.2d 746, 750.
[5] Proctor & Gamble Co. v. Coe, 68 App. D.C. 246, 249, 96 F.2d 518, 521, and authorities there cited; Dunn v. Ickes, 72 App.D.C. 325, 326, 115 F.2d 36, 37.
[6] Keim v. United States, 177 U.S. 290, 292, 293, 20 S. Ct. 574, 44 L. Ed. 774; Doehler Metal Furniture Co., Inc., v. Warren, ___ App.D.C. ___, 129 F.2d 43; 3 Pike and Fischer, Admin.Law, 72b.2-1.
[7] Decatur v. Paulding, 14 Pet.* 497,* 516, 10 L. Ed. 559; Keim v. United States, 177 U.S. 290, 293, 20 S. Ct. 574, 44 L. Ed. 774; Levine v. Farley, 70 App.D.C. 381, 385, 107 F.2d 186, 190; Perkins v. Lukens Steel Co., 310 U.S. 113, 131, 132, 60 S. Ct. 869, 84 L. Ed. 1108.
[8] Bates & Guild Co. v. Payne, 194 U.S. 106, 108, 109, 24 S. Ct. 595, 48 L. Ed. 894; United States ex rel. Dunlap v. Black, 128 U.S. 40, 48, 9 S. Ct. 12, 32 L. Ed. 354; Perkins v. Lukens Steel Co., 310 U.S. 113, 125, 127, 60 S. Ct. 869, 84 L. Ed. 1108; United States ex rel. Ness v. Fisher, 223 U.S. 683, 691-694, 32 S. Ct. 356, 56 L. Ed. 610; United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 324, 325, 23 S. Ct. 698, 47 L. Ed. 1074; United States ex rel. Hall v. Payne, 254 U.S. 343, 347, 348, 41 S. Ct. 131, 65 L. Ed. 295; United States v. Lynch, 137 U.S. 280, 286, 11 S. Ct. 114, 34 L. Ed. 700; Commercial Solvents Corp. v. Mellon, 51 App.D.C. 146, 150, 277 F. 548, 552.
[9] Proctor & Gamble Co. v. Coe, 68 App.D.C. 246, 249, 96 F.2d 518, 521, and authorities there cited.
[10] Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 123, 46 S. Ct. 215, 70 L. Ed. 494; Red River Broadcasting Co., Inc., v. Federal Communications Commission, 69 App.D.C. 1, 3, 6, 98 F.2d 282, 284, 287, and authorities there cited; Mallory Coal Co. v. National Bituminous Coal Commission, 69 App.D.C. 166, 174, 99 F.2d 399, 407; Farley v. Abbetmeier, 72 App.D.C. 260, 267, 114 F.2d 569, 576; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50, 51, 58 S. Ct. 459, 82 L. Ed. 638; Alexander v. State Personnel Board, Cal.App., 124 P.2d 338, 339, 340.
[11] Levine v. Farley, 70 App.D.C. 381, 385, 107 F.2d 186, 190.
[11a] 22 U.S.C.A. §§ 23f-23i.
[12] Cf. Longfellow v. Gudger, 57 App. D.C. 50, 16 F.2d 653.
[13] H. R. Rep. No. 2702, 71st Cong., 3d Sess., 14: "* * * These sections have the approval of the Secretary of State and assure the continuance of policies with respect to personnel administration which have been tested and found by experience to be equitable and desirable, without, however, placing any burdensome restraint upon the executive authority of the President and the Secretary of State over the Foreign Service." [Italics supplied]
Id. at 15: "This section contains a much needed provision establishing an equitable method for the involuntary retirement of unsatisfactory officers * * *. Adequate provision is made for previous warning concerning unsatisfactory work and for granting a hearing to officers before such involuntary separations." [Italics supplied]
Cf. Farley v. Abbetmeier, 72 App.D.C. 260, 267, 114 F.2d 569, 576.
[14] Lay, Foreign Service Reorganization, 18 Am.Pol.Sci.Rev. 697. See Lay, Foreign Service of the United States (1928) 19-25, 229-283; Sen. Rep. No. 1142, 67th Cong., 4th Sess.; H. R. Rep. No. 1479, 67th Cong., 4th Sess.; Sen. Rep. No. 532, 68th Cong., 1st Sess.; H. R. Rep. No. 157, 68th Cong., 1st Sess.; Sen. Rep. No. 1069, 70th Cong., 1st Sess.; H. R. Rep. No. 560, 71st Cong., 2d Sess.; H. R. Rep. No. 2702, 71st Cong., 3d Sess., 12-15.
[15] See generally, Lay, Foreign Service of the United States (1928) cc. X, XII, XIV; id. at ix, Foreword by Charles Evans Hughes: "The new diplomacy requires not the divining of the intent of monarchs, the mere discovery and thwarting of intrigues, but the understanding of peoples. There must be intimate acquaintance with their interests, their problems, the conflicts of parties, the course of opinion. There must be ability to sift; to seize upon what is significant in the mass of news, of rumors, of assertion, of debate; to know the character and particular aims of men who control the action of governments. For this, alertness and general adaptability will not suffice. One must have the equipment of the student of history and politics, and the democratic sympathies and cultural training which enable him to enter into the thoughts of peoples. And while he seeks to do this, he cannot escape giving an impression of the life of his own country. In no slight measure, by his own character and deportment, he determines the reputation of his government." [Italics supplied]; id. at 229, Walter Hines Page: "`But the realness and the bigness of the job here in London is simply oppressive. We don't even know what it is in the United States, and, of course, we don't go about doing it right. If we did, we shouldn't pick up a green fellow from the plains of Long Island and send him here. We'd train the most capable male babies we have from the cradle.'"
[16] Cf. United States ex rel. Taylor v. Taft, 24 App.D.C. 95, 98, 99, writ of error dismissed, 203 U.S. 461, 27 S. Ct. 148, 51 L. Ed. 269.
[17] 22 U.S.C.A. §§ 23h, 126.
[18] United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 419, 51 S. Ct. 502, 75 L. Ed. 1148; United States ex rel. White v. Coe, 68 App.D.C. 218, 220, 95 F.2d 347, 349; Brunswick v. Elliott, 70 App.D.C. 45, 49, 103 F.2d 746, 750; Reichelderfer v. Johnson, 63 App.D.C. 334, 336, 72 F.2d 552, 554.
[19] United States ex rel. Nalle v. Hoover, 31 App.D.C. 311, 320.
[20] Cooper v. O'Connor, 69 App.D.C. 100, 105, 106, 99 F.2d 135, 140, 141, 118 A.L.R. 1440, and authorities there cited; Spalding v. Vilas, 161 U.S. 483, 498, 16 S. Ct. 631, 637, 40 L. Ed. 780: "* * * personal motives cannot be imputed to duly authorized official conduct."; United States v. 243.22 Acres of Land in Town of Babylon, Suffolk County, N. Y., 2 Cir., 129 F.2d 678.
[21] Cooper v. O'Connor, 69 App.D.C. 100, 103-106, 99 F.2d 135, 138-141; Leuer v. McIntyre, Tex.Civ.App., 162 S.W.2d 158, 160; 2 Pike and Fischer, Admin. Law, 22d. 31-3: "Plaintiff invokes the obvious fiction that his suit is not one against defendants as members of the Local Draft Board, or to nullify acts done or attempted by them in their official capacities as members of the Board, but that it is merely a suit against them individually to nullify acts done by them in their private capacities. There is no merit in this contention. Plaintiff's every allegation was aimed at actions of defendants collectively, as members and officials of the Board; plaintiff's complaint being directed only at the manner in which defendants performed their official duties as members of the board, * * *. Any act done by the individual members of the Board in their private capacity towards fixing plaintiff's status * * * would of course be a nullity, without power to enforce, and nobody need pay any attention to them. But any act done by them collectively, in their official capacity, is a very different thing, and carries with it the usual presumption of validity incident to official acts of governmental agencies."
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131 F.2d 354 (1942)
ERCOLI
v.
UNITED STATES.
No. 8192.
United States Court of Appeals for the District of Columbia.
Decided November 9, 1942.
*355 Mr. Francis J. Kelly, with whom Mr. J. Louis O'Connor, both of Washington, D. C., was on the brief, for appellant.
Mr. Dennis McCarthy, Assistant United States Attorney, with whom Messrs. Edward M. Curran, United States Attorney, and Charles B. Murray, Assistant United States Attorney, all of Washington, D. C., were on the brief, for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
MILLER, Associate Justice.
Appellant was convicted in the trial court of negligent homicide. We took the case to determine whether statements made by him to police officers were properly received in evidence.
In support of its case, the Government offered the testimony of four witnesses, in the following order: Dr. Richard L. Hawkins, Lionel Couture, Dr. R. M. Rosenberg, and Sergeant William J. Liverman. The second and fourth witnesses were police officers. Lionel Couture testified, generally, concerning conditions which he found at the scene of the accident shortly after it occurred. He then testified, over objection, concerning a conversation with the accused immediately after the accident. Sergeant Liverman, the last of the four witnesses, testified concerning another later conversation with the accused. He was not a witness of conditions at the scene of the accident and, appropriately, his testimony was reserved until the last. Generally speaking the order in which evidence shall be presented to a jury is controlled by the trial judge.[1] If he receives evidence out of its logical order it may become necessary, later, for him to strike it from the record and instruct the jury to disregard it;[2] or perhaps to declare a mistrial.[3] But if sufficient evidence is presented by the *356 Government, before it closes its case, to show the relevance, materiality, or other factor of admissibility of the challenged evidence, then no prejudice results to the accused.[4]
Both appellant and the Government rely upon the case of Forte v. United States[5] to establish their conflicting contentions concerning the disputed testimony. In the Forte case we stated the applicable rule governing the reception in evidence of extrajudicial confessions. In the present case appellant's statements to the officers were admissions made by appellant as exculpatory statements,[6] rather than confessions. He did not in those conversations acknowledge guilt of crime,[7] any more than he did in his testimony at the trial. The rules governing the reception in evidence of such admissions are much less onerous than those concerning confessions.[8] But it is not necessary to draw the fine line of demarcation between the two, in order to decide this case, because, as we shall show, even under the requirements of the rule concerning confessions, appellant's statements were properly received in evidence.
Briefly stated the rule of the Forte case is that (1) there can be no conviction of an accused person in a criminal case upon an uncorroborated extrajudicial confession; (2) such corroboration is not sufficient if it tends merely to support the confession without also embracing substantial evidence touching and tending to prove *357 each of the main elements or constituent parts of the corpus delicti; (3) however, such corroborating evidence need not, independent of the confession, establish the corpus delicti beyond a reasonable doubt; (4) if there is substantial evidence of the corpus delicti, independent of the confession, and the two, together, are convincing beyond a reasonable doubt of a defendant's guilt, that is sufficient. And the rule was clearly restated in George v. United States.[9]
Applying this rule, therefore, the question is whether the corroborating evidence was sufficient in the present case. In answering this question we must consider all the evidence; not merely that presented by the Government. This results from the fact that, although appellant objected to the challenged testimony when it was first offered and, again, by his motion for a directed verdict, at the close of the Government's case, nevertheless he then proceeded to the presentation of his own case and testified in his own behalf to most of the same facts as those which appear in his statements to the officers.[10] His testimony thus constituted a judicial admission[11] and operated as an express waiver, with the same effect as an admission made in a pleading or in a stipulation.[12]
In the present case the corpus delicti consists of three elements, (1) the death of a human being, (2) by the instrumentality of a motor truck, (3) operated "at an immoderate rate of speed or in a careless, reckless, or negligent manner, but not wilfully or wantonly * * *".[13] It is not disputed that the first two elements were proved. In his brief appellant says: "It is submitted that to kill a person with an automobile is not a crime, and that is all that the Government proved aliunde the admissions of defendant."
It is with reference to the third element of the corpus delicti that the issue has been drawn; namely whether there was substantial evidence, apart from appellant's extrajudicial admissions, that the truck was being driven at an immoderate rate of speed or in a careless, reckless or negligent manner. As to this appellant concedes "that had the Government proven that the decedent was struck in the crosswalk where he had the paramount right to be, that the Government would have made out a prima facie case which together with the admissions would have been sufficient to overrule a motion for a directed verdict." But the bill of exceptions which was signed by the trial judge shows that appellant while testifying in his own behalf stated as follows: "* * * that the deceased was about twenty-five or thirty feet from the defendant when defendant first saw him and was walking toward the north side of M Street in the sidewalk lane on the west side of New Hampshire Avenue." [Italics supplied.] His entire testimony as it appears in the bill of exceptions reads as follows: "That he was operating the concrete truck east on M Street; that he was in the center lane of traffic on M Street, approaching New Hampshire Avenue, intending to go north on New Hampshire Avenue and there was a lane of traffic to his right; that an automobile on his right, traveling in the same direction, obstructed his view of the pedestrian until it turned into the gasoline station, at which time it was too late to stop; that the deceased was about twenty-five or thirty feet from the defendant when defendant first saw him and was walking toward the north side of M Street in the sidewalk lane on the west side of New Hampshire Avenue; that the deceased walked into the truck without looking for traffic from the direction the truck *358 was coming; that defendant had been working for the Super Concrete Company for about three and a half years and had been driving this truck or one of a similar type for that period of years; that when he struck the man, the truck had been slowed up some, but not much, by the application of the brakes; that the truck was loaded with about five tons of concrete; that the truck was equipped with mechanical booster brakes; that these brakes don't act right away, but as you apply the brakes, the booster goes into operation and then the brakes start to take hold; that the brakes on the truck had just started to take hold when he struck the man; that the man had reached a point about four or five feet from the center of M Street at the time he was struck." [Italics supplied.]
The rule of corroboration, it will be remembered, does not require proof beyond a reasonable doubt. Neither does it require direct evidence. Circumstantial evidence may be sufficient for the purpose; as, indeed, it may be to prove that an accused is guilty as charged.[14] In addition to appellant's testimony, and apart from the admissions to which objection was made, the Government's witnesses testified to the following facts among others: (1) Dr. Hawkins responded to an ambulance call at M Street and New Hampshire Avenue, N. W., where he found a dead man lying on the street with the right side of his head mashed in and his brains strewn all over the road; (2) Lionel Couture, a police officer arrived at the scene at approximately 7:10 A. M. on April 23, 1941, and found the body lying in the northwest corner of the intersection of New Hampshire Avenue and M Street, N. W.; the weather was cloudy, the streets were dry, it was daylight; (3) there were "scuff marks" on the street in the crosswalk; (4) the truck, loaded with three and a half tons of concrete was parked on the east side of New Hampshire Avenue; (5) there were no marks on the truck except that upon the front license plate, which was right in the center of the truck, "there were some clothing impressions"; (6) the witness (Couture) saw appellant at the scene of the accident; (7) witness Couture tested the brakes of appellant's truck immediately after the accident and, at a speed of twenty miles per hour, the truck stopped within forty feet after the brakes were applied; (8) the horn on the truck was in good condition.
It does not require further demonstration to show that much of this evidence bore directly upon the speed at which appellant drove his truck and the care or carelessness with which he was driving. The vehicle under his control was of tremendous size and weight facts also described fully to the jury it was potentially dangerous to pedestrians; it was being driven on a busy city street; at a rate of speed which made it impossible to stop according to his own testimony when he first saw the deceased, approximately twenty-five to thirty feet away; and this in spite of the fact that the traffic in the lane to his right obstructed his view and should have made him even more careful. We conclude, therefore, that there was sufficient evidence, touching the corpus delicti, and the whole of it, to satisfy the rule declared in the Forte case, and that the judgment of the trial court must be affirmed.
Affirmed.
NOTES
[1] Thiede v. Utah Territory, 159 U.S. 510, 519, 16 S. Ct. 62, 40 L. Ed. 237; Murray v. United States, 53 App.D.C. 119, 124, 288 F. 1008, 1013, certiorari denied 262 U.S. 757, 43 S. Ct. 703, 67 L. Ed. 1218; Dunlap v. United States, 7 Cir., 70 F.2d 35, 37, certiorari denied 292 U.S. 653, 54 S. Ct. 863, 78 L. Ed. 1502.
[2] Rossi v. United States, 9 Cir., 278 F. 349, 353. Cf. Pennsylvania Co. v. Roy, 102 U.S. 451, 460, 26 L. Ed. 141; Throckmorton v. Holt, 180 U.S. 552, 567, 21 S. Ct. 474, 45 L. Ed. 663.
[3] Hopt v. Utah, 120 U.S. 430, 438, 7 S. Ct. 614, 618, 30 L. Ed. 708: "It is true, in some instances, there may be such strong impressions made upon the minds of a jury by illegal and improper testimony, that its subsequent withdrawal will not remove the effect caused by its admission; and in that case the original objection may avail on appeal or writ of error. But such instances are exceptional." Remus v. United States, 6 Cir., 291 F. 501, 510, certiorari denied 263 U.S. 717, 44 S. Ct. 180, 68 L. Ed. 522. See United States v. Josef Perez, 22 U.S. 579, 9 Wheat. 579, 6 L. Ed. 165. Cf. Copeland v. United States, 55 App.D.C. 106, 2 F.2d 637, certiorari denied 266 U.S. 629, 45 S. Ct. 128, 69 L. Ed. 476; De Camp v. United States, 56 App.D.C. 119, 10 F.2d 984; Throckmorton v. Holt, 180 U.S. 552, 21 S. Ct. 474, 45 L. Ed. 663.
[4] Beavers v. United States, 6 Cir., 3 F.2d 860, 862; Gladstone v. United States, 9 Cir., 248 F. 117, certiorari denied 247 U.S. 521, 38 S. Ct. 582, 62 L. Ed. 1246; Smith v. United States, 8 Cir., 284 F. 673, certiorari denied 261 U.S. 617, 43 S. Ct. 362, 67 L. Ed. 829.
[5] Forte v. United States, 68 App.D.C. 111, 94 F.2d 236, 127 A.L.R. 1120. Certified on question of validity of bill of exceptions, 302 U.S. 220, 58 S. Ct. 180, 82 L. Ed. 209.
[6] 3 Wigmore, Evidence, 3d Ed. 1940, § 821(2); People v. Gibbs, 349 Ill. 83, 89, 181 N.E. 628, 630; Dimmick v. United States, 9 Cir., 116 F. 825, 831, certiorari denied 189 U.S. 509, 23 S. Ct. 850, 47 L. Ed. 923. See Gulotta v. United States, 8 Cir., 113 F.2d 683, 686.
[7] 3 Wigmore, Evidence, 3d Ed. 1940, § 821: "What is a confession? Denials, guilty conduct, and self-contradictions, distinguished. A confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. It is to this class of statements only that the present principle of exclusion applies. In this sense, therefore, there are in particular three things which fall without the meaning of the term `confession', and are thus not affected in any way by the present rules, namely, (1) guilty conduct, (2) exculpatory statements, and (3) acknowledgments of subordinate facts colorless with reference to actual guilt." [Italics supplied in part.] See Hartzell v. United States, 8 Cir., 72 F.2d 569, 577, certiorari denied, 293 U.S. 621, 55 S. Ct. 216, 79 L. Ed. 708. Cf. Ex parte Tozier, D.C.Me., 2 F.2d 268, affirmed sub. nom. Howes v. Tozer, 1 Cir., 3 F.2d 849, 851.
[8] Dimmick v. United States, 9 Cir., 116 F. 825, 831, certiorari denied, 189 U.S. 509, 23 S. Ct. 850, 47 L. Ed. 923; State v. Foot, 100 Mont. 33, 46, 48 P.2d 1113, 1118; Hulst v. State, 123 Fla. 315, 320, 166 So. 828, 830; People v. Gibbs, 349 Ill. 83, 89, 181 N.E. 628, 630. See 3 Wigmore, Evidence (3d ed. 1940) §§ 816, 821; 4 id. §§ 1049, 1050, 1051, 1053; 2 Wharton's Criminal Evidence, 11th Ed. 1935 § 580. See, also, Perovich v. United States, 205 U.S. 86, 91, 27 S. Ct. 456, 458, 51 L. Ed. 722: "Again, it is alleged that there was error in overruling a motion made by defendant to strike out all the testimony given by a deputy marshal of conversations between him and the defendant. As these conversations were not induced by duress, intimidation or other improper influences, but were perfectly voluntary, there is no reason why they should not have been received." [Italics supplied.] United States v. Larkin, 26 Fed.Cas. 866, No. 15,561; Wine v. United States, 8 Cir., 260 F. 911, 916, certiorari denied 253 U.S. 484, 40 S. Ct. 481, 64 L. Ed. 1024; Miller v. United States, 7 Cir., 53 F.2d 316, 317: "The only evidence which can be considered as hearsay is the testimony of the officers as to what appellant and Moore said at the time of their arrests. These statements were not only admissible as admissions of the parties, but they were corroborated by the testimony of appellant and Moore. In admitting this evidence there was no error." Hartzell v. United States, 8 Cir., 72 F.2d 569, 577, certiorari denied, 293 U.S. 621, 55 S. Ct. 216, 79 L. Ed. 708; Murray v. United States, 53 App.D.C. 119, 124, 288 F. 1008, 1013, certiorari denied 262 U.S. 757, 43 S. Ct. 703, 67 L. Ed. 1218. Cf. Warszower v. United States, 312 U.S. 342, 347, 61 S. Ct. 603, 85 L. Ed. 876.
[9] 75 U.S.App.D.C. 197, 125 F.2d 559, 563.
[10] Murray v. United States, 53 App.D. C. 119, 126, 288 F. 1008, 1015, certiorari denied 262 U.S. 757, 43 S. Ct. 703, 67 L. Ed. 1218. See Perovich v. United States, 205 U.S. 86, 91, 27 S. Ct. 456, 51 L. Ed. 722.
[11] 9 Wigmore, Evidence, 3d Ed. 1940, § 2588; Miles v. United States, 103 U.S. 304, 308, 313, 26 L. Ed. 481; United States v. Vigorito, 2 Cir., 67 F.2d 329, certiorari denied, 290 U.S. 705, 54 S. Ct. 373, 78 L. Ed. 606. See United States v. Knoell, D.C.E.D.Pa., 230 F. 509, 512, affirmed, 3 Cir., 239 F. 16, 21, error dismissed 246 U.S. 648, 38 S. Ct. 316, 62 L. Ed. 920.
[12] 9 Wigmore, Evidence, 3d Ed. 1940, §§ 2588, 2590; Smith v. United States, 61 App.D.C. 344, 62 F.2d 1061; Leyer v. United States, 2 Cir., 183 F. 102, 104.
[13] D.C.Code (1940) § 40 606, 49 Stat. 385: "Any person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless, or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of a misdemeanor, and shall be punished by imprisonment for not more than one year or by a fine of not more than $1,000 or both."
[14] Sanford v. United States, 69 App.D. C. 44, 45, 98 F.2d 325, 326; Perovich v. United States, 205 U.S. 86, 91, 27 S. Ct. 456, 457, 51 L. Ed. 722: "While it is true there was no witness to the homicide and the identification of the body found in the cabin was not perfect, owing to its condition, caused by fire, yet, taking all the circumstances together, there was clearly enough to warrant the jury in finding that the partially burned body was that of Jaconi and that he had been killed by the defendant."; Crumpton v. United States, 138 U.S. 361, 362, 363, 11 S. Ct. 355, 34 L. Ed. 958.
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263 Pa. Super. 477 (1979)
398 A.2d 676
COMMONWEALTH of Pennsylvania
v.
Vaughn B. GREENLEE, Appellant.
Superior Court of Pennsylvania.
Submitted September 15, 1978.
Decided February 16, 1979.
*479 Vincent A. Couchara, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, for Commonwealth, appellee.
Before CERCONE, SPAETH and LIPEZ, JJ.
LIPEZ, Judge:
On May 17, 1974, appellant was sentenced to three to twenty-three months in Montgomery County Prison after pleading guilty to charges of receiving stolen goods and conspiracy. He was released on parole on August 18, 1974. On December 6, 1975, appellant was arrested and charged with burglary. On January 16, 1976, a parole revocation hearing was held on the burglary charge and on various technical parole violations. Appellant was found in violation of his parole and was sentenced to serve the balance of his original sentence. He then pleaded guilty to the burglary and a related charge, and was sentenced on that conviction to two to four years' imprisonment. Appellant was sent to the State Correctional Institution at Graterford to serve his sentence.
Appellant filed a Post-Conviction Hearing Act (PCHA) petition alleging that the sentence was illegal because he had been ordered to serve the burglary sentence before completing his original sentence. The PCHA hearing court *480 found that the order committing appellant to prison for the parole violations clearly indicated that the sentence therefor was to precede the burglary sentence.[1] The PCHA court therefore ordered, on May 24, 1977, that the records at Graterford be corrected to indicate that appellant was first to serve the balance of his original sentence and then begin the burglary sentence. The order dismissed the petition without any other relief. Appellant does not argue this issue on appeal, and in fact agrees that the court was correct:
[T]he order of the lower court of January 16, 1976, was clear that the sentences were to be consecutive and that sentence for the parole violation was to precede the sentence for the new criminal offense."
Appellant's brief at 5.
Appellant asserts, by new court appointed counsel, on this appeal that his PCHA hearing counsel was ineffective for failing to move to amend the PCHA petition (which appellant had personally completed and filed) in order to allege ineffectiveness on the part of appellant's parole revocation hearing counsel on the grounds that that attorney had failed to object to the introduction, in the course of the revocation hearing, of alleged hearsay evidence concerning the burglary charge.
The standard to be applied in any consideration of alleged ineffectiveness of counsel is found in the following frequently-cited passage:
[Counsel's] assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives *481 were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.
Cmwlth. ex rel. Washington v. Maroney, 427 Pa. 599, 604-5, 235 A.2d 349, 352 (1967). We can discern no reasonable basis for the failure of PCHA counsel to move to amend the PCHA petition, which had been filed pro se by appellant, in order to assert a claim that parole violation hearing counsel had been ineffective for failing to object to certain hearsay testimony at the parole hearing. The record of the parole hearing alone makes out a prima facie case for a finding of ineffectiveness on the part of parole hearing counsel. At that hearing, evidence was adduced by the Commonwealth concerning both appellant's technical violations[2] and alleged new criminal offenses. Appellant admitted the technical violations under direct examination,[3] but did not testify regarding the burglary. The only evidence regarding the burglary was presented by the testimony of a police detective. The portions of this testimony that tended to inculpate appellant were entirely hearsay.[4]
*483 Revocation of parole because of a subsequent criminal conviction requires service of the remainder of the whole original term of imprisonment, without credit for time at liberty on parole ("street time"). See United States ex rel. Heacock v. Myers, 251 F. Supp. 773 (E.D.Pa. 1966), aff'd, 3 Cir. 367 F.2d 583, cert. denied, 386 U.S. 925, 87 S. Ct. 900, 17 L. Ed. 2d 797, Com. ex rel. Thomas v. Myers, 419 Pa. 577, 215 A.2d 617 (1966). Revocation based on a technical violation of parole term requires that credit be given for "street time" passed in good standing only. 61 P.S. § 331.21a (1964). See Bunner v. Board of Probation and Parole, 32 Pa.Cmwlth. 483, 379 A.2d 1368 (1977).
In the instant case, at the parole revocation hearing, the court revoked appellant's parole and allowed no credit for "street time." Such a sentence would be lawful only if a criminal violation were shown at the hearing. Since the only evidence of a criminal offense presented at the parole revocation hearing was hearsay not admissible under any exception, it follows that, had the testimony been objected to and excluded, the revocation court would have been required to consider whether appellant was entitled to credit for street time and, if so, how much credit was to be applied against the sentence of recommittal. See 61 P.S. 331.21a; *484 Bunner v. Board of Probation and Parole, supra. This is so because no evidence on the burglary charge other than the inadmissible hearsay having been presented, the only violations on which the revocation hearing court could have imposed sentence would have been the technical violations admitted by appellant; credit for "street time" in good standing is required.[5] It is clear that appellant's parole was revoked solely on the basis of the evidence heard at the revocation hearing. The opinion of the PCHA hearing court indicates that appellant pleaded guilty to the burglary and related charges after the revocation hearing.
To summarize, we conclude that, had parole revocation counsel objected to the hearsay testimony and had that testimony been excluded, the only proven violations would have been technical, and consideration of appellant's eligibility for credit for street time would have been mandated.[6] Even though we conclude, on the basis of the record, that PCHA counsel had no reasonable grounds for failing to move to amend the PCHA petition in order to raise the issue of ineffectiveness of parole revocation hearing counsel, the record is insufficient to allow proper consideration of the conduct of revocation hearing counsel.[7] We therefore remand this case to the PCHA hearing court for a hearing limited to the issue of the ineffectiveness of the attorney who represented appellant at the parole revocation hearing. If the court finds that revocation counsel's failure to object to the hearsay testimony, was warranted, then the revocation of appellant's parole and the sentence to serve the balance of his original sentence should stand. If the *485 revocation is based solely on technical violations, the court should determine the amount of "street time" the appellant is entitled to and amend the sentence accordingly.
Remanded for proceedings not inconsistent with this Opinion.
NOTES
[1] The record fully and clearly supports the PCHA court's findings. The order committing appellant reads:
AND NOW, this 16th day of January, 1976, it is hereby ordered that defendant, appearing with counsel, be sentenced to undergo an imprisonment of not less than 2 years nor more than 4 years and stand committed, and be sent to the State Correctional Institution at Graterford, Pennsylvania, to date from expiration of the sentence imposed on 1333 of 1973. (Emphasis added.)
[2] The Commonwealth's evidence of the technical violations was in the form of testimony by appellant's parole officer.
[3] [BY DEFENSE COUNSEL:]
Q. Why did you not telephone your Probation Officer?
A. Because, I have seen him, he came to the house and I was talking to him.
Q. The last time he came to the house was March 6, 1975. Why did you not report to him by phone afterwards?
A. I don't know.
Q. Were you working while you were out on parole?
A. Yes.
Q. Why did you not pay the [court] costs off?
A. I had a lot of bills that I had to pay off, too.
Q. Well you realize that if you failed to pay the costs off they [sic] would constitute a parole violation, do you not?
A. Yes. . . .
(N.T. at 16, January 16, 1976).
[4] [BY THE COMMONWEALTH:]
Q. And you had occasion to make an arrest of Mr. Greenlee on December 6th, 1975, in connection with a burglary, is that correct?
A. Yes, I did.
Q. Would you give, his Honor, [sic] a brief summary of the events that occurred on that date?
A. Yes, I was contacted at my home at, approximately, eight forty-five in the morning by Officer Michael McCarthy of the Lansdale Police Department. He was at that time in the process of investigating a a burglary at Penn Auto Center and Sam's Arco Station on South Broad Street at Vine in the Borough of Lansdale. Now, Officer McCarthy had advised me that there had been a window broken in the rear of the southeast side of the building and that the perpertrator [sic] had apparently cut himself rather severely, as there was a considerable amount of blood found at the scene. He also advised that there was, approximately, Two Dollars in pennies taken at that time.
Q. All right.
A. As a result of information supplied me I advised him that I had in mind two suspects, one of whom was Mr. Greenlee; and a check of North Penn Hospital was negative; and I had Officer McCarthy check that with various hospitals in the area. He determined that at Norristown, at Montgomery Hospital, Mr. Greenlee was currently at the Emergency Room for treatment for a cut of the thigh. Now, with that information I contracted Norristown P.D. and they sent three people around to detain Mr. Greenlee until my arrival at, approximately, ten-fifty A.M. at which time I arrested Mr. Greenlee; gave him his advice of rights; he made no statements at that time. I picked up several pieces of evidence, and one was, approximately, a one by three inch piece of glass that was removed from the thigh of Mr. Greenlee by the doctor at the Emergency Room, one side of which was painted red, this corresponded with the window that was broken to gain entrance from the exterior of the building. I also picked up from the hospital and the doctor a piece of gauze with known blood from Mr. Greenlee's leg.
Now, he was returned to the Landsdale P.D. and again advised of his rights in writing. He again refused to make any statements. The blood from the gauze bandage, the piece of glass that was removed from his leg was submitted to the Philadelphia Police Chemistry Laboratory along with other known pieces of glass from the window and
[DEFENSE COUNSEL]:
Your Honor, I'm going to have to object to this.
THE COURT: Overruled.
DIRECT EXAMINATION CONTINUED
[THE COMMONWEALTH]:
Q. Continue, Detective?
A. There was also glass submitted from the interior door to the office and also a pair of boots which were confiscated from Mr. Greenlee's apartment on a Consent to Search form signed by his wife who was in fact the lessee of the apartment. The result of what was confiscated from the apartment was, approximately Two Dollars in pennies, which she stated she had removed from his trousers.
As a result of the articles submitted to the Philadelphia Police Laboratory it was their conclusion that Item 1 which was a round sealed tin with blood scrapings taken at the scene were scrapings of human-type "O" blood; that the piece of gauze removed from Mr. Greenlee's leg and painted red on one side corresponded to pieces of glass submitted from the broken window at the scene, and they state that paint on Items 6 and 8 compare favorably in color, texture and solvent behavior.
Mr. Greenlee as a result of the evidence that we have obtained at that time was arraigned before District Justice Zepp on the afternoon of December the 6th, and remanded to Montgomery County Prison in lieu of bail, and as a result of the probation detainer or parole detainer filed by Mr. Chancellor.
Q. All right. Detective, did you speak to the victim of this crime?
A. Yes. There was only, approximately, Two Dollars in pennies taken.
Q. Two Dollars in pennies was missing?
A. Yes.
Q. You stated that was found in the pants of Mr. Greenlee?
A. That's correct.
[THE COMMONWEALTH]:
No further questions, your Honor.
[5] A revocation of parole based entirely on hearsay may not be sustained. Com. v. Riley, 253 Pa.Super. 260, 384 A.2d 1333 (1978).
[6] The mere arrest on the burglary charge would have been only a technical violation until there had been an adjudication of guilt. Jones v. Johnson, 402 F. Supp. 992 (E.D.Pa. 1975).
[7] For example, parole revocation hearing counsel may have declined to object to the hearsay evidence with the acquiescence of his client. This is particularly significant in view of the fact that appellant, after hearing this evidence, promptly pleaded guilty to the burglary charge.
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165 N.J. Super. 352 (1979)
398 A.2d 152
IN THE MATTER OF HARRY KAMPELMAN, AN ATTORNEY OF THE STATE OF NEW JERSEY.
IN THE MATTER OF DOTTEL REALTY CO., INC., KAMPELMAN PROPERTIES, INC., A/K/A H. KAMPELMAN INDUSTRIES, INC., A/K/A KAMPELMAN PROPERTIES, K.E.K. REALTY CO., ROSKAM ASSOCIATES, INC., KAMAN PROPERTIES, INC., A/K/A KAMAN PROPERTIES, 347 FERRY ST., INC., SUNSHINE, INC., A/K/A SUNSHINE HOMES, KAMBRO REALTY, SOLKAM REALTY CO., INC., CORLAN CORPORATION, BAUKAM, INC., AND PASSAIC COUNTY CENTER, INC. TRUSTEES OF THE CLIENTS' SECURITY FUND OF THE BAR OF NEW JERSEY, PLAINTIFF,
v.
HARRY KAMPELMAN, DEFENDANT.
Superior Court of New Jersey, Chancery Division.
Decided January 22, 1979.
*353 Mr. Michael S. Meisel, custodial receiver of the estate of Harry Kampelman, pro se.
Ms. Colette A. Coolbaugh for plaintiff Trustees of the Clients' Security Fund of the Bar of New Jersey. (Messrs. Charles J. Hollenbeck and David E. Johnson on the brief).
Mr. Salvatore L. Borrelli attorney for Lakeview Savings and Loan Association.
Mr. Willis F. Flower for Chelsea Title Co. (Messrs. Kirkman, Mulligan, Bell & Armstrong, attorneys)
*354 Mr. Herman Osofsky for David and Gitla Helman.
Mr. Bennett Wasserstrum for Stephen Kerekes.
CIOLINO, J.S.C.
This matter involves three consolidated actions and presents the question: Is an advance of money by the Trustees of the Clients' Security Fund of the Bar of New Jersey (Fund) to a custodial receiver appointed pursuant to R. 1:28-8 to take possession of the property of an attorney an administrative expense of receivership and as such entitled to priority of distribution?
The pertinent facts are undisputed. On January 23, 1976 Harry Kampelman, through his attorney, filed a complaint requesting the appointment of a receiver for his law practice.
Pursuant to the complaint, on February 11, 1976 this court appointed Michael S. Meisel, Esq. custodial receiver of said practice, "with full authority to take charge of and manage the assets, trust accounts and bank accounts of said practice of law * * *."
Meanwhile, on February 3, 1976 a group of investors and former clients of Kampelman filed a complaint seeking the appointment of a receiver of the corporations of which Kampelman was alleged to be sole controlling shareholder, and with which Kampelman had placed investments. This court also appointed Meisel custodial receiver of these entities on March 1, 1976.
On February 7, 1977 the Trustees of the Fund filed a complaint resulting in the appointment of Meisel on March 7, 1977 as custodial receiver of the entire estate pursuant to R. 1:28-8. That order also consolidated the three separate actions in which Meisel was appointed receiver. Early in 1976 Meisel began corresponding with the Trustees of the Fund regarding, among other things, financial assistance from the Fund to facilitate an investigation into possible assets of Kampelman's estate. The Trustees agreed on April 20, 1977 to advance Meisel $10,000 to underwrite the costs of such an investigation. This financial assistance enabled Meisel to *355 compel accountings, conduct real estate and corporate searches, hold receiver's hearings and engage in litigation to recover assets, all for the benefit of Kampelman's clients and other creditors.
Subsequently, at the Trustees' request Meisel petitioned the court for authority to refund all or part of the $10,000 advanced by the Fund for the investigation. An order to show cause to approve the receiver's final report and accounting was made returnable on January 2, 1979, and the Fund filed a motion, also returnable on January 2, 1979, for an order directing reimbursement by the receiver. The Fund alleges that the $10,000 advance represents an administrative expense of the receivership and as such enjoys a priority over other claims. I agree with the Fund's position.
Significant to reaching this determination is Trustees of the Clients' Secur. Fund, etc. v. Beckmann, 143 N.J. Super. 548 (Ch. Div. 1976). After recognizing the unique nature of proceedings pursuant to R. 1:28-8, the court there stated:
In the absence of any statutory or judicial precedent, the administration and distribution of an insolvent attorney's estate pursuant to R. 1:28-8 should proceed in accordance with the provisions of the federal bankruptcy laws, supplemented where appropriate by equitable principles reflecting the special circumstances giving rise to this type of proceeding. Thus, the status of claims should be determined as of the time of the filing of the complaint or the appointment of a receiver, United States v. Marxen, 307 U.S. 200, 59 S.Ct. 811, 83 L.Ed. 1222 (1939); 11 U.S.C.A. § 103, and questions of priority in distribution, setoff, provability of claims and like matters should follow the equivalent provisions of the federal bankruptcy laws which furnish a vast body of procedural and substantive law in the administration of individual insolvents' estates. [at 554-555]
Referring, then, to the Federal Bankruptcy Act, I find § 64(a) (1) is on point:
(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition; the *356 fees for the referees' salary and expense fund; the filing fees paid by creditors in involuntary cases or by persons other than the bankrupts in voluntary cases; where property of the bankrupt transferred or concealed by him either before or after the filing of the petition, is recovered for the benefit of the estate of the bankrupt by the efforts and at the cost and expense of one or more creditors, the reasonable costs and expenses of such recovery * * *. [11 U.S.C. § 104(a) (1) (Supp. 1973)]
Judicial interpretation of § 64(a) (1) indicates that administrative expenses come first in the distribution of proceeds derived from property under the jurisdiction of the bankruptcy court. See Division of Labor Law Enforc., Cal. v. Goggin, 165 F.2d 155, 157 (9 Cir.1947); rev'd on other grounds, 336 U.S. 118, 69 S.Ct. 469, 93 L.Ed. 543 (1949). The same is generally true in connection with insolvency proceedings pursuant to state law. See, generally, N.J.S.A. 14A:14-21(1) (Supp. 1978); 20 N.J. Practice (Ackerson-Fulop-Lodge, Skills and Methods), (2d 1973), § 1503 & 1504 at 371-374.
What constitutes "costs and expenses of administration" is largely a matter within the discretion of the trial court in light of the attendant facts in each case. Nisonoff v. Irving Trust Co., 68 F.2d 32, 34 (2 Cir.1933); Lerner Stores Corp. v. Electric Maid Bake Shops, 24 F.2d 780, 782 (5 Cir.1928). Nevertheless, the provisions of § 64(a) (1) relative to costs and expenses are to be strictly construed in aid of economy in administration. See In re American Anthracite & Bit. Coal Corp., 171 F. Supp. 377 (S.D.N.Y. 1959), aff'd sub nom. American Anthracite & Bit. Coal Corp. v. Leonardo Arrivabene, S.A., 280 F.2d 119 (2 Cir.1960). For purposes of priorities under § 64(a) (1), cost and expenses of administration must generally relate to the preservation or development of the bankrupt estate. In re Freedomland, Inc., 480 F.2d 184, 189 (2 Cir.1973), aff'd sub nom. Otte v. United States, 419 U.S. 43, 95 S.Ct. 247, 42 L.Ed.2d 212 (1974).
That the $10,000 advanced by the Fund to Meisel constitutes an administrative expense is clear. The advance *357 from the Fund enabled Meisel to initiate an investigation leading to the discovery of assets which were part of Kampelman's estate. The monies also facilitated the receiver's preservation of these discovered assets through appropriate litigation. The money advanced has served to assist Meisel in fulfilling the purpose of R. 1:28-8, that is, enabling "the court to marshall all of the assets of an attorney's estate for the protection of his clients, the Trustees and his creditors." Beckmann, 143 N.J. Super. at 554.
The $10,000 is a "cost and expense" of administering Kampelman's estate. Consequently, based on the principles underlying § 64(a) (1) of the Federal Bankruptcy Act and the insolvency law of this State, I find that the Fund has a priority as to the $10,000 advanced to the receiver.
Accordingly, the receiver is directed to reimburse the sum of $10,000 to the Fund as a cost and expense of administration and entitled as such to priority of distribution.
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502 F. Supp. 932 (1980)
John SIMMONS, Plaintiff,
v.
Warren STANTON, Sheriff of Oceana County, State of Michigan, Defendant.
No. G76-194 CA6.
United States District Court, W. D. Michigan, S. D.
October 8, 1980.
*933 Vernon D. Kortering, Muskegon, Mich., for plaintiff.
Clifford W. Prince, Shelby, Mich., for defendant.
OPINION
DOUGLAS W. HILLMAN, District Judge.
The plaintiff, John Simmons, was employed as an undersheriff in the Oceana County Sheriff's Department for six and one-half years before his discharge on October 16, 1975. The defendant, Warren Stanton, was sheriff of Oceana County at the time of plaintiff's discharge. Plaintiff was discharged upon informing defendant that he was considering the possibility of running for the office of sheriff, on the Democratic ticket, against the defendant in the 1976 general election.
Thereafter, plaintiff commenced this action under 42 U.S.C. § 1983, alleging that his discharge was in retaliation for the exercise of rights protected by the First and Fourteenth Amendment guarantees of freedom of expression and association. In addition, he claims that his discharge without a hearing violated his Fourteenth Amendment due process rights.
The trial in this case was to the court without a jury. For the reasons set forth below, the court finds the defendant's discharge of the plaintiff was in violation of his First and Fourteenth Amendment rights and a judgment for damages for the plaintiff shall be entered accordingly.
FACTS
On April 21, 1969, plaintiff was appointed deputy sheriff in the Oceana County Sheriff's Department and served in that capacity until his appointment as undersheriff on May 1, 1975. He served as undersheriff until his discharge by defendant on October 16, 1975. The defendant Warren Stanton was the elected sheriff of Oceana County at the time of plaintiff's discharge.
The plaintiff admits that in the summer of 1975 he considered running on the Democratic ticket against the defendant in the general election of November 1976, and further discussed the possibility of his candidacy privately with various individuals. Upon hearing rumors of plaintiff's possible candidacy, defendant called plaintiff into his office on October 15, 1975, to discuss the matter with him. In response to questions by the defendant, plaintiff acknowledged *934 that he was considering running for the office of sheriff in the next year's general election.[1] At that time, defendant asked plaintiff to resign from his position within the Department. Plaintiff refused. The following day plaintiff received a letter from the defendant informing him of his discharge.[2]
In August of 1976, plaintiff ran unopposed in the primary election for the office of sheriff on the Democratic Party ticket. In the general election held on November 2, 1976, plaintiff successfully defeated defendant Sheriff Stanton and took office as sheriff of Oceana County on January 1, 1977, an office which he still holds.
I. FIRST AMENDMENT ISSUES
The plaintiff maintains that his discharge under these circumstances violated his First and Fourteenth Amendment rights of freedom of expression and political association. The issue presented is whether the First and Fourteenth Amendments protect the right of a public employee to run for local public office or whether, as a condition of employment, a public employee may be required to refrain from such active political activity.
In the case of Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), the Supreme Court declared unconstitutional the political patronage practices of the Cook County government in democratic party machine, on First Amendment grounds. The Court held that the discharge of public employees solely because of their partisan affiliation or non-affiliation infringes constitutionally-protected rights to freedom of expression and association. Similarly, the discharge of the plaintiff for announcing either his intentions or his consideration of the possibility of running for office against the sheriff of Oceana County, violated his First and Fourteenth Amendment rights. See also, Pickering v. Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) and Serna v. Manzano, 616 F.2d 1165 (10th Cir. February 25, 1980).[3]
The inquiry of the court does not stop at having established that plaintiff was exercising a protected First Amendment right. The Supreme Court has indicated that restraints on First Amendment interests of public employees are permitted under appropriate and limited circumstances. In Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 811 (1968), the Court established a "balancing" test that calls for weighing of the right of the public employee to freely express opinions and associate in matters of public concern with the competing interests of the state, as an employer, in maintaining and promoting the efficiency of the public services it performs through its employees. See, Pickering, at 568, 88 S.Ct. at 1734. This is the appropriate test for the court to apply to the facts of this case.
*935 In Pickering v. Board of Education, supra, a school teacher sent a letter to the local newspaper which was critical of the Board of Education's proposed tax increase and its past allocation of resources between educational and athletic programs. The letter was published. After a hearing by the board, Pickering was discharged, based on a determination that the letter had been detrimental to the efficient operation and administration of the school district. The Illinois Supreme Court upheld the discharge solely on the grounds that substantial evidence was introduced to support a finding that the publication of the letter was detrimental to the interests of the schools. The Supreme Court reversed. As indicated in the test set forth above, the Supreme Court held the First Amendment rights of the plaintiff had to be balanced against the competing interests of the employer. The Court concluded that the statement made by Pickering in his letter to the editor did not in fact create such controversy or discord within the school district that the ordinary operations of the school district were in any way adversely affected or impaired.
The defendant here argues in defense of his action in discharging the plaintiff that the provisions of M.C.L.A. § 51.70 and § 51.71 create an unrestricted right in the sheriff to discharge a deputy sheriff and/or an undersheriff from his public employment, at the pleasure of the sheriff. The statutes provide:
"Each sheriff may appoint 1 or more Deputy Sheriffs at his pleasure, and may revoke such appointment at any time ..." (§ 51.70)
"The sheriff of each county shall ... appoint some proper person undersheriff of the same county, who shall also be a general deputy, to hold during the pleasure of such Sheriff ..." (§ 51.71)
However broad and unbridled the discretion of the sheriff may be in the exercise of his power to discharge under the above statutes, he may not do so in retaliation for the exercise by an employee of his right to free speech. See, Pickering, supra, and Serna v. Manzano, supra.
In addition, the defendant argues in defense of his action that the continued employment of the plaintiff in the Sheriff's Department, under the circumstances, would have created turmoil and morale problems within the Department. It is the defendant's testimony that he told the plaintiff in their October 15, conversation that he anticipated morale problems within the Department if the plaintiff refused to resign. However, on cross-examination, Sheriff Stanton admitted that the rumors of plaintiff's intention had not yet created any morale or other problems within the office at the time he requested plaintiff's resignation. At no time did the defendant discuss with the plaintiff any precautionary actions that either plaintiff or defendant might take to prevent deterioration of morale within the office. Stanton's apprehensions in anticipation of morale problems within the Department do not establish a sufficient justification for the restraint imposed upon the plaintiff's exercise of his First Amendment rights.
In analyzing the facts presented in Pickering, the court looked to several factors to determine the nature and extent of defendant-employer's interests that might justify restraint on the First Amendment rights of employees: (1) whether public criticism had been directed toward an individual with whom the employee would normally be in contact in the course of his daily work; (2) whether the ability to maintain discipline or harmony among co-workers had been affected; (3) whether personal loyalty and confidence between the employer and the subordinate employee was necessary to their proper functioning; and (4) whether there had been harm or adverse impact on the ordinary operations of the work in the public services performed.
The same factors are appropriate here for the court to use in balancing the First Amendment interests of Simmons in pursuing elected local office, against the competing interests of Sheriff Stanton and the Department in maintaining an efficiently run Sheriff's Department free of dissension, discord or serious morale problems.
*936 (1) Public Criticism; (2) Discipline Problems and Harmony Among Co-workers:
There is no indication that Simmons had directed criticism either publicly or privately against Stanton in exploring the possibilities of running for elective office against him.
Neither is there any indication that the plaintiff's expression of interest in running for local office had created any discipline problems or lack of harmony among his co-workers. Sheriff Stanton had discharged Simmons based on his speculation that Simmons' continued employment would create disharmony or morale problems among the staff members within the Department. No evidence was offered to establish that in October of 1975 it was generally known among the staff that Simmons was entertaining the thought of or had formed the intentions of running for sheriff in the next general election. If, in fact, morale problems or discord or turmoil had developed within the Oceana County Sheriff's Department as a result of Simmons' candidacy different considerations would be involved in this case.[4] The fact is that no such discord had developed. The record does not show any facts to support a conclusion that Sheriff Stanton's apprehensions of turmoil or effect on staff morale resulting from plaintiff's candidacy were anything more than a premature, unsubstantiated concern on the part of the Sheriff.
(3) Need for Personal Loyalty and Confidence:
Undoubtedly, a special need exists for confidence and personal loyalty between a sheriff and his immediate undersheriff in order to maintain an efficient working relationship. That concern, if it was held by Sheriff Stanton, could have been addressed and accommodated by some action short of discharge of his undersheriff. For example, it would have been reasonable for the defendant to move the plaintiff into a position of deputy within the Department at the time he indicated his intentions to run against the defendant. Stanton certainly could have then selected from among the other six or seven deputies, a person to serve in the position of undersheriff. If that accommodation had been made, there is no reason to believe that plaintiff would have or should have suffered a reduction in his salary.
(4) Harm or Adverse Impact on the Operations of the Sheriff's Department:
Likewise no proofs were introduced to establish that the plaintiff's expression of intention to run in the 1976 general election for the office of sheriff had either impeded his performance of his work or interfered with or had an adverse effect upon the regular operations of the Department. The defendant had discharged the plaintiff more than a year before the general election. No opportunity was given by defendant to see what influence, if any, plaintiff's candidacy might have on the Department.
It is reasonable to presume that at some point in a race for local public office which obviously raises issues of public concern, a candidate would spend some time actively running for that office. Because of Simmons' premature discharge in this case, it is impossible for the court to determine when active campaigning for the local political office would have warranted a limited, involuntary leave of absence for the plaintiff. For the purpose of calculating damages in *937 this suit, I find it reasonable to assume that Sheriff Stanton could have required Undersheriff Simmons to take an involuntary leave of absence for thirty days prior to the general election in which he ran for Sheriff, which was held on November 2, 1976.
In balancing the competing claims of First Amendment protection of the plaintiff's right to announce his candidacy and run for local public office against his employer, against the competing interests of the state, as an employer, in promoting the efficiency of the public services it performs through its employers, under the Pickering test, I conclude that the defendant acted prematurely and wrongfully in violation of the plaintiff's First and Fourteenth Amendment rights in discharging him on October 16, 1975. No evidence exists in the record to support a conclusion that the conduct of the plaintiff before his discharge included any criticism of his employer. Nor did his conduct in any way adversely affect the ability of the employer to maintain discipline or harmony among his staff. And finally nothing undertaken by plaintiff undermined in any way personal loyalty between the plaintiff and the Sheriff or in any way jeopardized his functioning or harmed the Department in its orderly operation. Absent any finding of adverse harm to the interests of the employer, the plaintiff could not have been compelled to relinquish the exercise of his First Amendment rights as a condition to his continued employment in the Sheriff's Department. The fact that defendant may have thought in good faith that plaintiff's plans to run against him might create morale or discipline problems is not a sufficient reason for plaintiff's discharge.
II. THE HATCH ACT
Under the provisions of the Hatch Act, 5 U.S.C. § 1501, et seq., certain local public employees whose "principal employment is in connection with an activity which is financed in whole or in part by loans or grants by the United States or a federal agency," are prohibited from being a candidate for elected office.[5] The defendant raises the Hatch Act in his defense as a legitimate basis for his termination of plaintiff's employment. I cannot agree, based on the record, that the application of the Hatch Act required the termination of plaintiff's employment, on October 16, 1975.
The evidence in the record does not support a conclusion that Simmons was principally employed in or had responsibility for activities within the Department that were financed by federal loans or grants within the meaning of the Hatch Act. The parties have stipulated that federal funds awarded to the Oceana County Sheriff's Department for use in the calendar year of 1975 included three grants in the total amount of $111,219.79.
*938 Federal funds contributions for 1975:
Law Enforcement Assistance
Administration (LEAA) Grant $16,240.69
Office of Criminal Justice Grant 81,822.50
Comprehensive Employment and
Training Act (CETA) Grant 13,156.60
_________
Total: $111,219.79
The LEAA Grant paid the salary and fringe benefits of a detective within the Department. The CETA Grant was used to hire and pay salaries and fringe benefits for two new deputy sheriffs. The Office of Criminal Justice Grant was used to purchase a county-wide radio communications system. There is no indication that any of these federal funds were used to contribute to the plaintiff's salary directly or to activities which constituted his principal employment responsibilities within the Sheriff's Department. Consequently, the Hatch Act does not apply to plaintiff's employment situation because he is not a local employee under the provisions of Section 1501(4) of the Act.
Assuming, for purposes of argument, that the requirements of the existence of federal funds within the Department and within the sphere of plaintiff's principal employment, under Section 1501(4) of the Act had been satisfied, Simmons was not a "candidate for elective office" under Section 1502(3) of the Act on October 16, 1975. From the record it appears that, on or before that date, he either had formed an intention to become a candidate for local public elective office, or at most was seriously considering the possibility. However, the distinction is not material to the issues presented by the case. In either event, he had not in fact become a candidate and the Hatch Act, therefore, did not mandate his resignation or discharge from public employment on October 16, 1975.
On that date, Simmons had made no public announcement of his candidacy. The general election was to be held more than a year later, on November 2, 1976. He had not circulated or filed nominating petitions and none were required to be filed until June of 1976, for the August primary. The objective indications of a candidacy by the plaintiff for public office were simply not present in October of 1975.
III. DUE PROCESS
The plaintiff, in addition, claims in his complaint that Sheriff Stanton, acting in his official capacity, in failing to provide Simmons a hearing on the question of his discharge, violated his procedural due process rights under the Fourteenth Amendment. The Supreme Court decisions in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) and Perry v. Sinderman, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972) establish that before a person is deprived of protected interests he must be afforded an opportunity for a hearing, except that under exceptional circumstances a hearing may be postponed until after the deprivation. The resolution of this due process question, given the facts of this case, turns on whether the plaintiff had an entitlement to continued employment and thereby a protected property interest in his employment. Board of Regents v. Roth, supra, at 577, 92 S.Ct. at 2709. The court having resolved the substantive First Amendment issues in plaintiff's favor, no need exists to proceed to resolve the issues raised in plaintiff's due process claim.
IV. DAMAGES
The parties have stipulated to damages suffered by the plaintiff as a result of his discharge, including loss of wages and fringe benefits, mitigated by plaintiff's collection of unemployment and earnings from part-time employment in the Hesperia Police Department in 1975 and 1976.
The court finds that the plaintiff is entitled to judgment against defendant Sheriff Stanton, acting in his official capacity, *939 in the amount of $2,985.50.[6] In addition, plaintiff shall have 14½ months of seniority, which he lost as a result of his discharge, restored to him within the Oceana County Sheriff's Department. The damages are calculated based on net wage loss for the period of October 16, 1975, through December 31, 1976, with the exclusion of a 30-day period before the November, 1976, election, which the court finds would have been a reasonable period for a required, involuntary leave of absence for the plaintiff. Fringe benefits, including hospital insurance, life insurance, and retirement benefits for the entire period, including the period of mandatory leave, are calculated in the damage figure.
This opinion constitutes the findings of fact and conclusions of law of the court as required by Rule 52(a) of the Federal Rules of Civil Procedure. A judgment against the defendant awarding damages to the plaintiff in the amount determined by the court in this opinion shall be issued accompanying this opinion.
IT IS SO ORDERED.
NOTES
[1] There is some dispute between the parties whether Simmons was "considering the possibility" of running for the office of Sheriff in the next general election or whether he had formed an "intention to run" as a candidate in the election at the time of his discharge. The record indicates that the plaintiff had not yet firmly decided whether to run for the office. (See discussion infra, p. 938 of this opinion.)
In any event, the distinction is not critical to the analysis or resolution of the issues of the case.
[2] On October 16, 1975, the plaintiff received the following letter, signed by the defendant:
"This is to notify you that your appointment as Undersheriff is hereby terminated as of October 16, 1975. Dated October 16, 1975."
[3] In Serna v. Manzano, supra, two deputy sheriffs brought an action alleging that their discharge was in retaliation for exercise of First Amendment and Fourteenth Amendment rights. Deputy Sturdevant, a plaintiff, had decided to run for sheriff in the next general election against the incumbent sheriff, his employer. Serna was going to act as Sturdevant's campaign manager. The trial judge applied the Pickering "balancing test" and found that the actions of Serna and Sturdevant in connection with the race for public office were "disruptive and interfered with the efficient operation of the sheriff's office" and therefore justified their discharge. The Tenth Circuit Court of Appeals affirmed the action of the trial judge, but acknowledged that the defendant sheriff did not have unbridled power to discharge the plaintiffs in retaliation for the exercise of their rights to freedom of expression, 616 F.2d, at 1167.
[4] Likewise, if there had been a breach of trust between Sheriff Stanton and Undersheriff Simmons "significantly different considerations" would be involved in this case. In footnote 3 of the Pickering opinion, 391 U.S., at 570, 88 S.Ct. at 1735, the Court said:
"... positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also by imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases."
[5] The portions of the Hatch Act, 5 U.S.C. § 1501 et seq., which are relevant to the defense raised by the defendant provide as follows:
"§ 1501. Definitions. For the purpose of this chapter ...
(4) `State or local officer or employee' means an individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency ..."
"§ 1502. Influencing elections; taking part in political campaigns; prohibitions; exceptions
(a) A State or local officer or employee may not
(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office;
(2) directly or indirectly coerce, attempt to coerce, command, or advise a State or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes; or
(3) be a candidate for elective office.
(b) A State or local officer or employee retains the right to vote as he chooses and to express his opinions on political subjects and candidates.
(c) Subsection (a)(3) of this section does not apply to
(1) the Governor or Lieutenant Governor of a State or an individual authorized by law to act as Governor;
(2) the mayor of a city;
(3) a duly elected head of an executive department of a State or municipality who is not classified under a State or municipal merit or civil service system; or
(4) an individual holding elective office."
[6] The plaintiff's damages are calculated as follows:
Wage loss with offset * $1,556.83
Hospitalization insurance 884.45
Life insurance 29.82
Retirement 514.40
_________
Total damages with offset for
actual earnings $2,985.50
* Wage loss is calculated for the period from 10/16/75
through 12/31/76 with the exception of a 30-day period
immediately before the general election of November of
1976, which the court has found would have been a reasonable
period for a mandatory temporary leave.
Damages against the defendant, acting in his official capacity, are appropriate under the reasoning of the Supreme Court in its recent opinion in Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980).
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502 F.Supp.2d 434 (2007)
BURTON IMAGING GROUP, Plaintiff,
v.
TOYS "R" US, INC. Defendant.
Civil Action No. 06-2420.
United States District Court, E.D. Pennsylvania.
August 8, 2007.
*435 Eleanor T. Barnett, Glen H. Waldman, Bilzin, Sumberg, Baena, Price & Axelrod LLP, Miami, FL, Jason A. Copley, Robert G. Ruggieri, Cohen Seglias Pallas Greenhall & Furman PC, Philadelphia, PA, for Plaintiff.
Jonathan M. Korn, Blank Rome Comisky & McCauley, Cherry Hill, NJ, Louis H. Kozloff, Blank Rome, LLP, Philadelphia, PA, for Defendant.
MEMORANDUM AND ORDER
ANITA B. BRODY, District Judge.
Plaintiff Burton Imaging Group (Burton) brought this action against defendant Toys "R" Us, Inc. (TRU) for detrimental reliance *436 quantum meruit, unjust enrichment, and fraud in the inducement arising out of alleged misrepresentations made by TRU employees. TRU has moved for summary judgment. Because Burton has failed to offer sufficient evidence to establish essential elements of its claims, the motion as to all claims is granted.
FACTS[1]
Burton is a digital graphic production company located in Pennsylvania. TRU owns a graphic display, known as a "Scrim," which covers the facade of TRU's store in Times Square in New York City. The Scrim is a "one-of-a-kind" system of rolling panels of advertisements. Since 2001, TRU had a contract with a vendor, Vomela Specialty Company ("Vomela"), to run the Scrim project. TRU's contract with Vomela was set to expire in the fall of 2005, and Mike Tabakin, Director of Marketing at TRU, and Kathleen Szymanski, Vice President and General Manager of the Times Square store, determined that TRU should find a back, up vendor just in case Vomela was unable to service its needs. Szymanski challenged Ron Javer and Andrea Rovaggi, employees of TRU and part of TRU's marketing department, to reduce production costs, either by finding a cheaper vendor for the Scrim or by convincing Vomela to reduce its price.
In February 2005, Javer of TRU contacted Mark Bilker at Burton about the Scrim opportunity. Interested in the concept of the Scrim, Scott Segen, co-owner and president of Burton, contacted Javer to discuss the project further. Soon thereafter, a meeting took place at the TRU Times Square store. Segen and Bilker met with Javer, and Javer told Burton that TRU was looking for a new vendor to potentially take over the Scrim project. Segen testified that Javer disclosed TRU's "unhappiness with [their current] supplier." Segen also testified that Javer told him that TRU disliked the present supplier's "inflexibility on price" and "their geographic distance between Minnesota where . . . the supplier is located and Times Square[.]" Also, Segen testified that Javer told him that other companies would be bidding on the Scrim contract, but specifically identified only Vomela, the incumbent.
In March 2005, the next meeting took place, again at the Times Square store. The same people attended this meeting, with the addition of Rovaggi of TRU. Rovaggi provided technical details to Burton regarding the Scrim. In a subsequent meeting on April 4, 2005, Burton explained to TRU its pricing structure, operations, and how it would handle the project from production to installation. After this meeting, Burton understood that it would need to provide full size printed panels to show the materials and colors Burton would use if it produced the Scrim.
On May 2, 2005, Vomela and TRU met, and TRU informed Vomela that another company was bidding on the Scrim. TRU explained that it intended to lower its prices and improve its technology, and they needed assurance that Vomela would have an alternate site closer to Times Square in case there was a problem with the Scrim. In response, Vomela offered to reduce its price by three percent and subsequently addressed TRU's other concerns.
TRU then asked Burton to produce various samples for TRU so that TRU could determine whether Burton's product met *437 TRU's standards. On May 23, 2005, Burton submitted a proposal that included a ten percent discount for any TRU promotion, and an offer by Burton to purchase a cycle of graphics space. The proposal would produce a savings of 6.3% over the course of a year. At the conclusion of a meeting on June 15, 2005, Tabakin informed Segen that TRU believed in long term relationships, TRU sought a longterm relationship with Burton and it would be important for Burton to fix the technological problems in the samples Burton had prepared, such as the color intensity.
Szymanski believed that TRU should compare proposals based on three criteria: product quality, service levels and price. She also believed that Vomela scored especially high in product and service levels, because TRU had a history with Vomela as the provider of the Scrim. These criteria were never communicated to Burton.
During the 2005 summer, representatives of TRU met with Burton to visually inspect Burton's product. TRU found that Burton's sample quality was "very good," and that Burton should proceed to the next step, which was the Revolution Power Test. Revolution Display System conducted the test at a cost of $3,000, to be paid by Burton. The Revolution Power Test would determine if Burton's product met TRU's standards for strength, durability and overall quality.
Most unfortunately, at a meeting on July 20, 2005, Szymanski told Segen "you got what we want, you can deliver it at the price you say you can deliver it at, we're going to move ahead with you as long as everything you're doing passes the Revolution Power test." Believing they had a deal if the Revolution Power Test went well, Burton started mastering and improving the Scrim system, dedicating hundreds of man hours to the TRU proposal.
On July 26, 2005, Rovaggi of TRU created a time line detailing how TRU expected to proceed in the bidding process. This time line was an internal document, and it included an entry for August 16, 2005, indicating that TRU "would share results with Vomela and allow them to rebid."
In the fall of 2005, Revolution sent TRU a glowing letter stating that Burton had passed the test and had met TRU's quality standards. The letter stated that the "test was a complete success" and further praised the Burton team. At a meeting after the Revolutionary Power Test, Wayne Schur, a representative of Burton, recalled Szymanski saying that she felt Burton had won.
After passing the Revolution Power Test, Burton undertook additional preparations for the anticipated change over in January 2006. Burton leased a new space in Philadelphia to accommodate new equipment, it contracted with an IT firm to start computer technology work for TRU, and it started hiring more employees to meet TRU's deadlines.
On September 21, 2005, the TRU team met to discuss the bids submitted. Present at this meeting were Szymanski, Tabakin, Javer and Rovaggi. Each member expressed his or her preference. Tabakin, Javer and Rovaggi preferred Burton because of substantial cost savings; but Szymanski preferred Vomela because TRU had a solid relationship with " Vomela based on past experience.
By November 2005, Burton had completed its due diligence, and its price proposal was about thirty percent lower than Vomela's. Szymanski told Segen to expect a letter of intent from the TRU legal department. However, Burton never received a letter of intent from TRU. Segen followed up via e-mail to Szymanski to inquire about the status of the promised letter of intent, but Szymanski never responded. In late November, Szymanski contacted Cheryl Renette, a regional, sales *438 manager at Vomela, and informed her that Vomela needed to lower its price by thirty percent and purchase a panel on the Scrim to win the contract. Not wanting to lose the Scrim contract, Vomela lowered its price and bought a panel on the Scrim. Vomela's price still exceeded Burton's, but the bids were comparable, and Vomela's new bid offered TRU savings of $600,000 per year over three years compared to the existing contract.
From the fall of 2005 until early December, TRU never informed Burton that it was considering any other vendors for the job. In early December 2005, Szymanski informed Burton that Vomela would be awarded the Scrim contract, and Burton was shocked.
On June 8, 2006, Burton filed this lawsuit asserting claims for fraud in the inducement, detrimental reliance, and quantum meruit. On January 31, 2007, Burton amended its complaint to include a claim for unjust enrichment. On March 15, 2007, TRU moved for summary judgment as to all claims.
LEGAL STANDARD
This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1332 because the parties are citizens of different states[2] and the amount in controversy exceeds $75,000.
Under Federal Rule of Civil Procedure 56(c), summary judgment should be granted "if, after drawing all reasonable inferences from the underlying facts in the light most favorable to the non-moving party, the court concludes that there is no genuine issue of material facts to be resolved at trial and the moving party is entitled to judgment as a matter of law." Kornegay v. Cottingham, 120 F.3d 392, 395 (3d Cir.1997). A factual dispute is "genuine" if the evidence would permit a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to withstand summary judgment, the non-moving party must make a showing "sufficient to establish the existence of every element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When deciding a summary judgment motion, the Court must make all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
DISCUSSION
At oral argument, the parties agreed that Pennsylvania law applies to all claims.
Detrimental Reliance/Promissory Estoppel
In Count II[3] of its amended complaint, Burton alleges that it detrimentally relied upon a promise made by TRU, which caused Burton to expend large amounts of time, money and effort. "Detrimental reliance is another name for promissory estoppel." Travers v. Cameron County Sch. Dist., 117 Pa.Cmwlth. 606, 544 A.2d 547, 550 (1988). The elements of detrimental reliance are: "(1) a promise to *439 a promisee, (2) which the promisor should reasonably expect will induce action by the promisee, (3) which does induce action, and (4) which should be enforced to prevent injustice to the promisee." C & K Petroleum Prods., Inc. v. Equibank, 839 F.2d 188, 192 (3d Cir.1988); KSM Assoc., Inc. v. ACS State Healthcare, LLC, No. 05-C4118, 2006 WL 1308267, at *2 (E.D.Pa. 2006). Burton fails to satisfy the first two elements of this claim.
The first essential element of promissory estoppel requires an express promise between the promisor and promisee. A "broad or vague implied promise" will not suffice. C & K Petroleum Prods., Inc., 839 F.2d at 192 (implied promise by bank to "administer the main checking account . . . in the normal, banking fashion" too vague for promissory estoppel claim). Even an express promise must indicate with "reasonable certainty" the intent of the parties. Ankerstjerne v. Schlumberger Ltd., No. 03-CV-3607, 2004 WL 1068806, at *5 (E.D.Pa. May 12, 2004), aff'd, 155 Fed. Appx. 48 (3d Cir. Sept.1, 2005). In Ankerstjerne, the defendant, a technical consulting company known as Schlumberger, hired the plaintiff, Ankerstjerne, for a sales position and paid performance-based bonuses in 2001. The following year, Ankerstjerne performed his duties, but Schlumberger failed to award bonuses for two projects. A Schlumberger employee told Ankerstjerne that "it was ridiculous" that the plaintiff had not been compensated, and that he would "get it taken care of per the terms of [plaintiffs] compensation plan." Id. at *6. The court held that these promises could not support a claim for detrimental reliance because the promise was "too indefinite[,]" and did not "specif[y] when or how much the plaintiff would get paid" for each project. Id.
At oral argument, Burton predicated its right to recover for detrimental reliance upon the statement made by Szymanski at a meeting on July 20, 2005. Szymanski said, "[w]e're going to move ahead with you as long as everything that you're doing passes the Revolution Power Test[,]" and Burton passed the Revolution Power Test. This statement of "going to move ahead" is simply insufficient to qualify as a promise for a claim of detrimental reliance because it does not express the intent of the parties with reasonable certainty. Like the promise in Ankerstjerne, Szymanski's statement fails to indicate key terms such as payment to Burton or duration of the Scrim contract. Therefore, Szymanski's express promise to "move ahead" is too vague to satisfy the first element of detrimental reliance.
Burton also fails to meet the second essential element of detrimental reliance, that the promisor should have reasonably expected the promise to induce action by the promisee. Under Pennsylvania law, the promisor must have an objectively reasonable belief that a purported promise will induce action by the promisee. C & K Petroleum Prods., Inc., 839 F.2d at 192. Action induced by the promisee's mistaken judgment will not satisfy this element of detrimental reliance because such reliance is not reasonable. See Murphy v. Bradley, 113 Pa.Cmwlth. 387, 537 A.2d 917, 919 (1988) (where plaintiff received raise in six prior years and relied on future raise when applying for a mortgage, and raise was not paid, plaintiff had no claim for detrimental reliance because he had relied solely on his own "mistaken judgment" that future raises were forthcoming).
Similarly, businesses may not rely merely on their own interpretation of the legal significance of a promise. In Josephs v. Pizza Hut of Am., Inc., a case analogous to the instant matter, a trial court in this Circuit ruled that a plaintiff could not reasonably rely solely on its own judgment in determining the legal effect of a promise. *440 733 F.Supp. 222, 226 (W.D.Pa.1989), aff'd, 899 F.2d 1217 (3d Cir.1990). The plaintiffs in Josephs sought to purchase a building in Pittsburgh, and they required two tenants to secure financing. Id. at 223. Plaintiffs negotiated with a representative of Pizza Hut, who informed them that if they leased the building in Pizza Hut's name, corporate approval from Pizza Hut would be a "mere formality." Id. at 223, 226. After the plaintiffs signed the lease, Pizza Hut rejected it, and the plaintiffs brought a claim for promissory estoppel. The court held that "reasonable reliance must be based on the promises of the party to be bound . . . and not simply on the judgment of the promisee." Id. at 227. The court ruled that the plaintiffs, experienced business owners represented by counsel, had not reasonably relied on the Pizza Hut representative's promise, as they had no assurance from counsel that the promise constituted "an existing, legal contractual obligation." Id. at 226. Instead, plaintiffs based their decision to purchase the building on a business hunch that Pizza Hut would execute the lease. Id. at 227.
In this case, Burton relied on Szymanski's statement at the July 20, 2005 meeting that, "we're going to move ahead with you as long as everything that you're doing passes the Revolution Power Test." Burton construed this to mean that passing the Revolution Power Test was both necessary and sufficient to finalize the deal, such that any further approval by TRU would be a "mere formality." Id. at 223. As in Josephs, Burton relied solely on its own judgment in determining the legal effect of Szymanski's promise. Burton's reliance, based on its own mistaken judgment, was unreasonable as a matter of law. Murphy, 537 A.2d at 919. Therefore, Burton has failed to demonstrate the existence of a genuine issue of material fact regarding elements one and two of its claim for detrimental reliance, and TRU is entitled to summary judgment on this claim.
Quantum Meruit and Unjust Enrichment
In Counts III and IV of its amended complaint, Burton asserts claims for quantum meruit and unjust enrichment. A plaintiff must prove the same elements for quantum meruit and unjust enrichment. Allegheny Gen. Hosp. v. Philip Morris, Inc., 228 F.3d 429, 447 (3d Cir. 2000). The elements for these claims are: "[ (1) ] benefits are conferred on one party by another, [ (2) ] appreciation of such benefits by the recipient, and [ (3) ] the acceptance and retention of these benefits under the circumstances such that it would be inequitable or unjust for the recipient to retain the benefits without payment of value." Id. at 447 (quoting 16 Summ. Pa. Jur.2d Commercial Law, § 2.2 (1994)); Mill Run Assoc. v. Locke Prop. Co., 282 F.Supp.2d 278, 293 (E.D.Pa.2003). Quantum meruit creates an implied promise between parties in the absence of a contract in order to prevent unjust enrichment. 16 Summ. Pa. Jur.2d Commercial Law § 2:16 (2006). "[N]o one who benefits by the labor and materials of another should be unjustly enriched thereby, so the law implies a promise to pay a reasonable amount for labor and materials furnished . . ." Id., § 2:2. A "benefit" is "any form of advantage." Id. Burton's claims fail on the third element.
A benefit conferred is not unjustly retained if a party confers the benefit with the hope of obtaining a contract. The parties have not brought to the Court's attention any cases under Pennsylvania law addressing the question of whether benefits conferred during contract negotiations are inequitable if retained, but other districts applying comparable state law have addressed this issue, and they are persuasive. Under Maryland law, for example, a plaintiff may not recover under unjust enrichment or quanturn *441 meruit the value of services he rendered in the hopes of obtaining a contract for himself.[4] In Dunnaville v. McCormick & Co., Inc., 21 F.Supp.2d 527, 535 (D.Md.1998), an action for unjust enrichment and quantum meruit, the plaintiff was a prospective buyer of the defendant's subsidiary corporation, Golden West. The plaintiff alleged that defendant had assured him they "had a deal." Id. at 532. Plaintiff then successfully undertook to prevent Golden West's largest customer, Burger King, from "granting an exclusive buying arrangement to one of Golden West's competitors." Id. at 529. In the end, the defendant sold Golden West to another purchaser, and plaintiff sued for unjust enrichment and quantum meruit, contending that he had conferred a benefit on defendant by preserving the Burger King account. Id. at 533. The district court granted summary judgment for the defendant, holding that quantum meruit and unjust enrichment are not warranted where the plaintiff performs "preliminary services" to enhance his chance of obtaining a contract, without the expectation of reimbursement. Id. at 535. The court found that the plaintiff had worked to benefit defendant and Golden West out of his own interest in enhancing the assets of a company he was poised to purchase, and to generate goodwill with the defendant. Id. at 535-536. Accordingly, he received all the "compensation" expected. Id. at 536. See also North Am. Fin. Group, Ltd. v. S.M.R. Enters., Inc., 583 F.Supp. 691, 700 (N.D.Ill.1984) (under Illinois law, no claim for quantum meruit for consulting services rendered by plaintiff to defendant during course of commercial negotiations); Absher Constr. Corp. v. Colin, 233 A.D.2d 279, 649 N.Y.S.2d 174 (N.Y.App. Div.1996) (detailed cost analysis for proposed construction was "merely preparatory to performance, and therefore could not constitute the basis for restitution based upon unjust enrichment.").
Much like the plaintiff in Dunnaville, Burton seeks to recover the value of services rendered during the preparation of Burton's proposal. Pl.'s Opp'n, 21. Burton devoted hundreds of man hours to the TRU proposal, leased space in Philadelphia and contracted with an IT firm in anticipation of the Scrim contract. Burton claims that these expenditures benefitted TRU by enhancing TRU's bargaining power vis-a-vis Vomela, but Burton has failed to offer evidence sufficient to demonstrate that TRU's retention of such a benefit would be unjust. Burton incurred these expenditures in the hope of obtaining the Scrim contract; the expenditures were "merely preparatory to performance[.]" Absher, 649 N.Y.S.2d at 175.
Furthermore, a plaintiff seeking to recover expenses incurred must have reasonably expected reimbursement for those expenses. In Allegheny Gen. Hosp., 228 F.3d 429, an action for quantum meruit and unjust enrichment, the plaintiff hospitals treated patients for certain medical illness which they traced back to the defendants, who sold tobacco products to the public. Id. at 433. Plaintiffs insisted that the defendants pay for the patients' medical and hospital expenses on the theory that the defendants had been unjustly enriched. The plaintiffs asserted that the patients' illnesses resulted from the patients' use of the defendants' products, and that the free medical care the smokers received from the hospital extended their longevity and generated more sales for the defendants. Id. at 438. The Third Circuit held that the plaintiffs "did not have a *442 reasonable expectation of payment from the [defendants,]" because defendants had no legal obligation to pay for the patients' medical care, such that the hospitals had not relieved them of any expense or obligation by providing such care for free. Id. at 447.
In this case, Burton claims that it should recover the expenses that it incurred in submitting its bid. However, Burton has not submitted any evidence that it expected to be reimbursed, or that such an expectation would be reasonable. Like the tobacco companies in Allegheny Gen. Hosp., TRU never said or did anything to indicate to Burton that TRU would reimburse Burton for the expenses it incurred in submitting its bid. Also like the tobacco companies who benefitted incidentally from the smokers' continuing longevity, TRU may have incidentally benefitted from Burton's efforts, but it had no existing legal obligation to pay for any bidder's costs in preparing its proposal.
Burton also claims an inequity by permitting TRU to retain the value of the benefit conferred on it, namely the difference between the expiring contract with Vomela and the new contract. Pl.'s Opp'n, 21. TRU contacted Burton about the possibility of Burton becoming TRU's vendor for the Scrim project, and TRU used Burton's superior pricing to pressure Vomela to lower its bid. But Burton entered the bidding process to advance its own economic interest. Burton developed an impressive proposal, including a price lower than Vomela had ever offered, to enhance its competitive position. Burton alleges that TRU used Burton to achieve some other financial gain, but that does not render the resulting financial gain the cost savings from Vomela's lower bid "inequitable." See In re Stendardo, 991 F.2d 1089, 1101 (3d Cir.1993) (in bankruptcy context, benefit to debtor not unjust where it also advanced creditor's interest). If this were not true, every losing bidder would find solace in an action for unjust enrichment. Def.'s Reply, 22.[5]
For the reasons stated above, Burton's claims for quantum meruit and unjust enrichment fail to satisfy the third element, and summary judgment is granted on counts III and IV.
ORDER
AND NOW, on this 8th day of August, 2007 defendant's motion for summary judgment (Doc. # 25) is GRANTED in its entirety.
NOTES
[1] The facts are stated in the light most favorable to the plaintiff, the non-moving party, and its allegations are taken as true when supported by "proper proofs wherever those allegations conflict with those of [the defendant]." See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir.2004).
[2] Burton is a Pennsylvania corporation with its principal place of business in Pennsylvania. TRU is a Delaware corporation with its principal place of business in New Jersey and conducts business in Pennsylvania.
[3] Count I of its amended complaint alleges an action for fraud in the inducement. At oral argument, Burton admitted that one essential element for fraud in the inducement is that the parties entered into a contract, and that there is no evidence of a contract in this case. For this reason, summary judgment as to Count I will be granted.
[4] The elements of unjust enrichment under Maryland law are identical to the elements under Pennsylvania law. Dunnaville v. McCormick & Co., Inc., 21 F.Supp.2d 527, 535 (D.Md.1998).
[5] Burton responds that the bidding process was a sham because Szymanski never intended to award the contract to anyone other than Vomela. Burton offers no authority for the proposition that parties negotiating over a potential contract have any implied duty to negotiate in good faith absent an express agreement to do so. Therefore, even if TRU never intended to award the contract to Burton, regardless of the merit of Burton's proposal Burton is not entitled to recover either the costs of its expenditures in preparing its proposal or the value of the savings due to Vomela's price reduction. Regardless of TRU's motives for not awarding the Scrim contract to Burton, Burton chose to submit a proposal and assumed the risk that the probability of obtaining the contract was low or non-existent.
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655 A.2d 1251 (1995)
PUBLIC ADVOCATE
v.
PUBLIC UTILITIES COMMISSION.
Supreme Judicial Court of Maine.
Argued January 25, 1995.
Decided March 10, 1995.
*1252 William C. Perkins (orally), Public Advocate, Augusta, for appellant.
Peter G. Ballou (orally), Public Utilities Com'n, Augusta, Andrew Landry (orally), Bangor Hydro-Electric Co., Bangor, for appellees.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.
LIPEZ, Justice.
The Public Advocate appeals from an order entered by the Public Utilities Commission awarding Bangor Hydro-Electric Company $7,320,000 in rate increases associated with projected revenue losses for the rate or attrition year, that is, from March 1994 through February 1995. The Public Advocate contends that the industrial sales component of the Commission's attrition[1] award lacked substantial evidentiary support and its findings of fact were deficient pursuant to 5 M.R.S.A. § 9061 (1989).[2] We disagree and we affirm.
*1253 In May 1993, Bangor Hydro filed revised rate schedules that would result in Bangor Hydro's revenues increasing by approximately $22.8 million. For reasons not at issue, that projection was twice reduced, eventually to $17.57 million. Following hearings in December 1993, the Commission authorized Bangor Hydro to file rate schedules increasing its rates by $11,047,361. This figure included the $7,320,000 attrition allowance. The Public Advocate does not challenge the remainder of the award corresponding to Bangor Hydro's test year revenue requirements.
The Attrition Allowance
Our review is limited. We review only questions of law, accepting the Commission's findings of facts as final if they are supported by substantial evidence on the record. New England Tel. & Tel. Co. v. Public Util. Comm'n, 448 A.2d 272, 278-79 (Me. 1982). We defer to the Commission's choice of ratemaking methodologies or techniques. Id. at 279. We consider the Commission's obligation to ensure, as far as possible, a fair and reasonable rate of return for the utility. Id. at 312. This obligation encompasses a duty to determine attrition even when the utility fails to prove the specific amount of attrition, if there is a basis for finding some attrition. Id. "That the Company's methodology was flawed does not obviate the Commission's responsibility of adequately compensating the utility for any attrition-regulatory lag that the Company was in fact experiencing." Maine Water Co. v. Public Util. Comm'n, 388 A.2d 493, 497 (Me.1978). We will uphold the Commission's attrition award if it is reasonable and supported by substantial evidence. New England Tel. & Tel. Co. v. Public Util. Comm'n, 448 A.2d at 312.
There are three components to an attrition analysis: attrition-year rate base, attrition-year expense, and attrition-year revenues. The sales forecast, outlining some of the attrition-year revenues, consists of residential, commercial, industrial, wholesale, and lighting sales. Bangor Hydro's forecasts for most of the residential and commercial classes used econometric models. For the industrial sales forecast, Bangor Hydro used a "judgmental" methodology. The Commission summarized this judgmental methodology in its order: "[T]he Company makes use of whatever it might know about the customer's past use and other behavior, and its business and economic conditions, and then uses whatever projection techniques might seem appropriate, plus the forecaster's judgment, to arrive at a forecast for each customer in the class."
The Commission strongly criticized Bangor Hydro for inadequately explaining and supporting its industrial sales forecast:
There is nothing in the record that describes the information [Bangor Hydro] obtained about the future purchases of its largest customers or how it estimated or applied its own judgment to this data. In fact, aside from the general description of the methodology, this forecast consists of nothing more than bare totals of expected sales to a group of customers over various periods. As a result it is impossible for the Commission or other parties to verify or otherwise assess the industrial forecast.
Given Bangor Hydro's approach to the explanatory data, as well as other sources of uncertainty, the Commission considered rejecting the industrial sales forecast. If it did so, the Commission concluded that it would have to deny the attrition request as a whole because of the integral relationship of the industrial sales forecast to the sales forecast generally and, in turn, to the attrition analysis as a whole.
The Commission chose a different course suggested by John Stutz, a witness called by the Commission's Advocacy Staff. This approach attempted to shield ratepayers from the risks associated with forecast error by using the highest reasonable sales forecast. Acknowledging some reluctance to use either one of Bangor Hydro's 1993 industrial sales *1254 forecasts[3] because of the lack of supporting data, the Commission ultimately decided to use the October 1993 industrial forecast based on its own evaluation of the reasonableness of the figure. The Commission found that Bangor Hydro's October 1993 forecast projected industrial sales for 1994 that would be 5.7% higher than actual sales in 1993. Further, the projection would be "greater than the actual sales increases to industrial customers in any of the past five years." The Commission concluded that the forecast "appears to be a reasonable one."
The Commission then made a further adjustment to this figure pursuant to Stutz's suggestion, increasing the projection by the difference between actual and forecasted 1993 sales. The Commission had at its disposal the actual sales figures for all of 1993. The Commission also cited evidence pertaining to the state of the Maine economy. Although the Commission criticized Bangor Hydro for not providing sufficient information for the Commission to verify the Company's forecast, the Commission ultimately accepted the October 1993 forecast based on actual data available to it with adjustments suggested by a credible witness. There was substantial evidence on the record to support the Commission's determination of the industrial sales component of the attrition award.[4]
Findings of Fact
The Public Advocate challenges the adequacy of the findings of fact contained in the Commission's order. The Commission must, pursuant to 5 M.R.S.A. § 9061 (1989), include in its decision "findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision." Findings of fact serve the following purposes: "to facilitate judicial review, avoid judicial usurpation of administrative functions, assure more careful administrative considerations, help parties plan cases for rehearing or judicial review, and to keep agencies within their jurisdiction." Maine AFL-CIO v. Superintendent of Ins., 595 A.2d 424, 428 (Me.1991). The findings should inform the parties and interested public of the basis for the Commission's decision. Id.
Although the Commission could have distinguished more clearly between its rejection of Bangor Hydro's methodology for arriving at an industrial sales forecast and its recognition that the result itself was verifiable by other means, this inadequacy does not require us to jettison the findings of fact as a whole for failure to satisfy section 9061. The findings of fact alert the reader to the sources of the Commission's decision: the approach recommended by Stutz, the report of the New England Economic Project, testimony about that report, and the record of Bangor Hydro's past industrial sales. This articulation of a basis for the decision is clearly sufficient.
The entry is:
Order affirmed.
All concurring.
NOTES
[1] "Attrition is the erosion in the rate of return on rate base resulting from an expectation that net operating expenses or net investment in plant, or both, will increase more rapidly than revenues." New England Tel. & Tel. Co. v. Public Util. Comm'n, 448 A.2d 272, 311 (Me.1982).
[2] 5 M.R.S.A. § 9061 (1989) provides in pertinent part:
Every agency decision made at the conclusion of an adjudicatory proceeding shall be in writing or stated in the record, and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision.
[3] Bangor Hydro presented two attrition year forecasts, one from April 1993, provided as part of its direct case, and an updated October 1993 forecast, provided as part of its rebuttal case.
[4] Our decision that the Commission's grant of attrition is supported by substantial evidence obviates the need to address the Public Advocate's argument that the order deprived ratepayers of their property without due process of law.
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871 S.W.2d 726 (1994)
John Howard ABDNOR, Appellant,
v.
The STATE of Texas, Appellee.
No. 235-93.
Court of Criminal Appeals of Texas, En Banc.
January 26, 1994.
Rehearing Denied March 9, 1994.
*728 Ronald L. Goranson, Dallas, for appellant.
John Vance, Dist. Atty., and Pamela Sullivan Berdanier, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
BAIRD, Judge.
Appellant was convicted by a jury of murder pursuant to Tex.Penal Code Ann. § 19.02(a)(1). Punishment was assessed at life imprisonment. Penal Code § 12.32(a). The Court of Appeals affirmed appellant's conviction. Abdnor v. State, 756 S.W.2d 815 (Tex. App.Dallas 1988) (Abdnor I). On discretionary *729 review, we held the trial judge erred in overruling appellant's objection to the jury charge's failure to include a limiting instruction concerning an extraneous offense. We then remanded to the Court of Appeals for a harm analysis pursuant to Almanza v. State.[1]Abdnor v. State, 808 S.W.2d 476 (Tex.Cr. App.1991) (Abdnor II). On remand, the Court of Appeals held there was no harm in the trial judge's failure to include a limiting instruction in the jury charge. Abdnor v. State, 845 S.W.2d 302 (Tex.App.Dallas 1992) (Abdnor III). We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in conducting its Almanza harm analysis.[2] We will reverse.
I.
The trial record reveals appellant, who had a history of drug abuse and mental problems, killed the decedent, a nurse, with whom appellant became romantically involved during his stay in a psychiatric hospital. Appellant shot the decedent with a rifle. Appellant was apprehended in his apartment soon after the shooting by Dallas County deputy sheriffs.
Appellant was charged with murder pursuant to Penal Code § 19.02(a)(1). A competency hearing was held in which a jury found appellant competent to stand trial. Thereafter, appellant's trial commenced, lasting several weeks. Because appellant asserted insanity as a defense, both sides presented several psychological experts during the guilt/innocence portion of the trial. The jury ultimately rejected appellant's claim of insanity and found him guilty of murder.
During the guilt/innocence phase of trial, the State introduced testimony of Bryan Parsons, a friend of appellant whom appellant had met during a stay in a psychiatric hospital. We set out verbatim our factual summary from Abdnor II:
... On direct examination during the guilt/innocence phase, State's witness Bryan Parsons testified that appellant telephoned on July 25, 1980, two days before the alleged offense, and stated that complainant, appellant's girlfriend, had an abortion, and that appellant and complainant had terminated their relationship. During that conversation appellant stated, "That bitch really screwed up this time ... if she walked through that door right now I'd blow her head off. I'd just blow her right up against the wall." Parsons related that conversation to members of the Dallas County District Attorney's Office eight months later in March, 1981.
On cross-examination, defense counsel impeached Parsons with his statement of September 13, 1981, the Sunday before trial began, wherein Parsons stated that he had lied about the March, 1981 conversation. On redirect examination, the State attempted to rehabilitate Parsons. Parsons testified that he recanted his March 1981 statement because he feared appellant. His fear stemmed from two extraneous offenses. First, appellant previously pulled a knife on Parsons. Second, appellant telephoned Parsons' boss and threatened to kill Parsons. Both of these events allegedly occurred in June, 1980, approximately one month prior to the telephone conversation and the alleged offense.
Appellant objected to the admission of the extraneous offenses. Specifically, the record reflects the following:
[Defense Counsel]: What we're objecting to, Your Honor, is the testimony, in effect, brings in extraneous matters and extraneous offenses: to-wit, assault, from the witness, which would be inadmissible for general purposes in this case, in that it would showit would have a tendency to show that the Defendant *730 is a criminal generally, and it is not really admissible on any issue in the trial.
... [I]t affects the state of mind of the witness, and its prejudice far outweighs any relevance of materiality of the testimony.
Basically, it is an extraneous offense: it's not relevant to the actual issues in this case. The State is only offering it for a limited purpose, and the prejudice outweighs its materiality.
THE COURT: Overruled.
* * * * * *
[Defense Counsel]: And I would also request that, as this testimony comes in, immediately after the witness makes the statements ... the Judge instruct the jury, specifically, that the testimony is admitted only for the purposes of how it affects the credibility of the witness, and it's not to be considered for any purpose whatsoever as to whether or not the Defendant is guilty of the offense charged.
THE COURT: Okay. Denied at this time. I'll take that up when we take up the Charge.
Prior to its submission to the jury, appellant objected to the court's charge for its failure to limit the jury's consideration of the extraneous offenses. Appellant offered several proposed charges for the trial court's consideration.
Abdnor II, 808 S.W.2d at 477-478 (emphasis in original) (footnote omitted). The trial judge, however, denied appellant's proposed charges and did not otherwise limit the jury's consideration of Parsons' testimony. Appellant's timely objection to the jury charge was overruled.
II.
In conducting its harm analysis on remand, the Court of Appeals reviewed both Parsons' testimony concerning appellant's extraneous offenses and the State's comments on Parsons testimony during jury argument. Abdnor III, 845 S.W.2d at 304-308. While agreeing the trial judge erred in not limiting Parsons' testimony concerning the extraneous offenses, the divided court found no harm resulted because:
[n]o emphasis was placed on the extraneous offenses with regard to the issue of sanity. Parsons' testimony about the extraneous offenses presented by the State, to explain Parsons' testimony about the inconsistent statements, covered less than three pages out of his 260 pages of testimony in the 5,600-page statement of facts. No other evidence was presented by the State regarding either the extraneous offenses or the credibility of Parsons.
Abdnor III, 845 S.W.2d at 309.
The court then held:
... We conclude that the context in which the State used Parsons' testimony relating to the extraneous offenses does not permit the testimony, by implication, to be drawn into the larger issue of sanity. The evidence of the offenses was used only to respond to the cross-examination and argument of defense counsel. Further, no expert testimony was elicited by either the prosecution or the defense that would lead to a jury concluding that only a sane person threatens others and then does not carry out the threat.
We conclude that the properly admitted, but erroneously unlimited, evidence of extraneous offenses caused no actual harm to appellant....
Id.
We granted appellant's petition for discretionary review to determine whether in conducting its harm analysis pursuant to Almanza v. State, 686 S.W.2d 157, the Court of Appeals had decided an important issue of state law in conflict with applicable decisions from this Court and because the justices of the Court of Appeals had disagreed upon a material question of law. Tex.R.App.P. Rules 200(c)(3) and (4).
III.
The importance of proper instructions in the trial judge's charge to the jury is apparent in the context of the division of responsibilities between judge and jury in a jury trial. While states have traditionally been given broad leeway in dividing responsibility between *731 judges and juries in criminal cases, Spencer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 652, 17 L.Ed.2d 606 (1967), Texas has followed the common law in assigning a fact-finding purpose to the jury. Tex. Const. art. I, § 15 interp. commentary (Vernon 1984). We have consistently held, and our Code of Criminal Procedure explicitly provides, that the "juror's are the exclusive judges of the facts ... [and] of the issues of facts." Ex parte Thomas, 638 S.W.2d 905, 907 (Tex.Cr. App.1982). See also, Penagraph v. State, 623 S.W.2d 341 (Tex.Cr.App.1981); Weatherford v. State, 31 Tex.Crim. 530, 21 S.W. 251 (App. 1893); Short v. State, 16 Cr.R. 44 (1879); and Tex.Code Crim.Proc.Ann. art. 26.13.
However, while the "jury is the exclusive judge of the facts, ... it is bound to receive the law from the court and be governed thereby." Tex.Code Crim.Proc.Ann. art. 36.13 (Vernon's 1981). In Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App.1977), we explained "[t]he law must come from the court, the facts must be decided by the jury, and the charge, to instruct the jury properly, must apply the law to the facts raised by the evidence."[3]See also, Daniels v. State, 633 S.W.2d 899 (Tex.Cr.App.1982); Doyle v. State, 631 S.W.2d 732, 738 (Tex.Cr.App.1982) (Op. on reh'g); Rider v. State, 567 S.W.2d 192, 195 (Tex.Cr.App.1978). The function of the jury charge is to instruct the jury on applying the law to the facts. In Williams, we emphasized
It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent confusion. A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those facts.
Id., 547 S.W.2d at 20. See also, Williams v. State, 622 S.W.2d 578, 579 (Tex.Cr.App.1981).
Moreover, because the charge is so essential to the jury's deliberations, "[i]t is clear that a charge must include an accurate statement of the law." Cane v. State, 698 S.W.2d 138 (Tex.Cr.App.1985). See also, Johnson v. State, 571 S.W.2d 170, 173 (Tex. Cr.App.1978) ("It is well established that a correct instruction of the law relating to the offense charged must be given to the jury."). When the trial judge fails to correctly charge the jury on the applicable law, the integrity of the verdict is called into doubt because
... [allowing] the jury to receive an application of the law to the facts from the partisan advocates without a neutral and unbiased instruction on the matter in the charge ... [risks] the degeneration of trial by jury to a debating contest, where the persuasiveness of competing applications of the law to the facts determines guilt or innocence. There should be but one controlling application of the law to the facts, and that application should come from the court. Its absence impairs the right to trial by jury and, therefore, by definition, is "calculated to injure the rights of the defendant," (art. 36.19, supra) to a trial by jury.
Williams, 547 S.W.2d at 20. Consequently, an erroneous or an incomplete jury charge jeopardizes a defendant's right to jury trial because it fails to properly guide the jury in its fact-finding function.
An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction. Tex.Code Crim. Proc.Ann. art. 36.19[4] prescribes the manner of appellate review for jury charge error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Cr.App.1984). When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from *732 the error to require reversal. Id. See also, Gibson v. State, 726 S.W.2d 129, 132 (Tex.Cr. App.1987). The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected. Where there has been a timely objection made at trial, an appellate court will search only for "some harm." By contrast, where the error is urged for the first time on appeal, a reviewing court will search for "egregious harm." Almanza, 686 S.W.2d at 171, and Arline v. State, 721 S.W.2d 348, 351 (Tex.Cr. App.1986).
In Almanza, we observed that if the error was subject to a timely objection at trial, "then reversal is required if the error is `calculated to injure the rights of the defendant' which means that there must be no more than that there must be some harm to the accused from the error." Id., 686 S.W.2d at 171 (emphasis in original). Essentially, this means that under the "some harm" analysis, "an error which has been properly preserved by objection will call for reversal as long as the error is not harmless." Id.
In Arline, 721 S.W.2d 348, we further explained the "some harm" analysis enunciated in Almanza. We initially remarked that the defendant must have suffered "`some' actual, rather than theoretical harm from the error." Arline, 721 S.W.2d at 351. However, we further noted that "the presence of any harm, regardless of degree ... is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred." Arline, 721 S.W.2d at 351 (emphasis in original). See also, Gibson, 726 S.W.2d at 133. We have recognized, however, that the burden of proof lies with the defendant to "persuade the reviewing court that he suffered some actual harm as a consequence of the charging error. If he is unable to do so, the error will not result in a reversal of his conviction." LaPoint v. State, 750 S.W.2d 180, 191 (Tex.Cr.App.1986) (Op. on reh'g). See also, Belyeu v. State, 791 S.W.2d 66, 75 (Tex.Cr.App.1989).
In contrast to art. 36.19, Tex. R.App.P. Rule 81(b)(2),[5] establishes the general standard of appellate review for trial error. See, Belyeu, 791 S.W.2d at 75, Beathard v. State, 767 S.W.2d 423, 432 (Tex.Cr. App.1989), and Rose v. State, 752 S.W.2d 529, 553 (Tex.Cr.App.1987). We have acknowledged that Rule 81(b)(2) is essentially the codification of the "harmless error" standard for constitutional errors enunciated by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Harris v. State, 790 S.W.2d 568, 584 (Tex.Cr.App.1989), and Mallory v. State, 752 S.W.2d 566, 569-570 (Tex. Cr.App.1988). In Chapman, the Supreme Court stated: "The application of a state harmless-error rule is ... a state question where it involves only errors of state procedure or state law." Id., 386 U.S. at 21, 87 S.Ct. at 826. Thus, in reviewing the applicability of Rule 81(b)(2), we have held Rule 81(b)(2)'s "harmless error" analysis typically applies to those trial errors amounting to a denial of federal or state constitutional rights and where there is no countervailing procedural rule or statutory provision. Rose, 752 S.W.2d at 554. See also, Belyeu, 791 S.W.2d at 75, and Erwin v. State, 729 S.W.2d 709 (Tex.Cr.App.1987). By contrast, art. 36.19, and the Almanza standard of review, is limited to violations of art. 36.14 through art. 36.18 which do not implicate state or federal constitutional rights. See, Rose, 752 S.W.2d at 553.[6]
IV.
A.
With the foregoing in mind, we now address appellants' first ground for review in *733 which appellant contends the Court of Appeals erroneously held the trial judge's failure to give the jury a limiting instruction on Parsons' testimony about appellant's extraneous offenses did not cause appellant "some harm" under Almanza.[7]
We initially note that since we have already found error in the charge, Abdnor II, 808 S.W.2d 476, our review is limited to determining whether appellant has proven that the admission of the unlimited extraneous offenses caused him harm. See, Gibson, 726 S.W.2d at 133 and, Arline, 721 S.W.2d at 351. In doing so, we keep in mind that the error must be
assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.
Arline, 721 S.W.2d at 351-352, and Almanza, 686 S.W.2d at 171.
The State introduced appellant's extraneous offenses on re-direct examination of Parsons to explain his inconsistent statements concerning a telephone conversation with appellant on July 25, 1980. Parsons testified he recanted his statements out of fear because appellant had twice threatened him (Parsons) in the month preceding the charged offense. We set the testimony in the record concerning appellant's extraneous offenses below:
The State: I believe I asked you if you had a reason for, at that point in time, with the trial approaching the following Monday, to make those statements to me.
Do you recall that?
Parsons: Yes.
The State: All right. You have testified earlier that when the Defendant was intoxicated, he got violent and got in people's faces; is that correct?
Parsons: Yes, sir; that's right.
The State: Let me ask you if you have had occasion to be in the presence of the Defendant[the complainant] being killed on the 27th of July, which was a Sunday morning, and the telephone call being that Friday night before that, if within the week or two-week period prior to that, you had occasion to be in the presence of the Defendant?
Appellant: Objection, Your Honor. The question calls for extraneous matters and is not limited solely to the purposes for which it's being offered.
The Court: Well, as to that specific question, as to whether he was in the presence, I overrule the objection.
Parsons: Yes, I was.
The State: Do you recall what day of the week that was, or what night it was?
Parsons: It was a Saturday night, I believe.
The State: Was it the Saturday immediately preceding the killing of [the complainant], or was it the Saturday before that, or do you recall which Saturday it was?
Parsons: It was not the preceding Saturday, but the week before.
The State: The Saturday before that?
Parsons: Yes.
The State: Now, I'll ask you if the events that occurred on that night, plus conversations or plus information that was communicated with youto you had a bearing upon what had occurredhad a bearing upon you telling me thisyou made this up, because you didn't want to testify. Did it; what had happened with the Defendant and you?
Parsons: Yes.
The State: Tell the jury what it was that caused you, and why you called me, and why you told me that; in your own words.
Parsons: Well, no; I'm sorry. Back up.
The State: Okay. When you called me and you told me, "I made this up". because you didn't want to testify on Monday...
Parsons: Yes.
The State: ... was there a reason?
Parsons: Yes, there was a reason.
*734 The State: What was it? What was the reason?
Parsons: I was afraid.
The State: Okay. Tell metell the jury, in your own words, why you were afraid.
Parsons: I thought of this trial, and I heard about it and read about it, and I didn't know what the outcome was going to be. I've seen what money can do.
* * * * * *
The State: Did you feel like you were going to have anybody that would be with you and protect you after you testified.
Parsons: That's the reason I was scared.
The State: Okay.
Parsons: I have no guarantee of personal safety after this trial is over with ...
The State: Do you mean that
Parsons: ... and I'm scared.
The State: Do you mean that?
Parsons: Yes.
* * * * * *
The State: Was there anyin connection with being afraid, was there any activity involving the Defendant and you that caused you to be afraid and to make those statements to me?
Parsons: Yes. He had previously pulled a knife on me.
The State: Now, when was that? When did he do that?
Parsons: About a month or two before.
* * * * * *
The State: Can you tell us the circumstances surrounding that?
Parsons: Yes, I can.
The State: How it occurred?
Parsons: We went drinking together, and as he got more intoxicated, he became more violent, and we got in kind of an argument, and he pulled a knife, and I let him know he couldn't do that.
The State: How did you let him know he couldn't do that?
Parsons: I kicked him a good one.
The State: All right.
Parsons: And that was about the end of that.
The State: All right. Now, the following week, in connection with your being afraid to testify in this thing, did you have any conversations with Mike Durand?
Parsons: Yes, I did.
The State: What did Mr. Durand tell you?
Appellant: Objection to hearsay ...
The Court: Overruled.
Appellant: ... because, here again, Your Honorat this time, I would request that the Court limit the testimony that is not related.
It's not being offered for the truth of the matter; just how it affects the credibility of this witness, and should not be considered at all against the accused, John Howard
The Court: I will sustain it unless a predicate is laid that's proper.
The State: Did this statement have any bearing upon you being afraid to testify in this case and telling me you made this up; what Mr. Durand told you?
The Court: Yes, it did.
Appellant: I would still make the same request for limiting instructions, Your Honor ...
The Court: Overruled.
Appellant: ... because, again, the testimony is not being offered for the truth of the matter.
The Court: Overruled.
Appellant: Exception.
The State: What did he tell you?
Parsons: He told me that John had called and said he was going to take a .45 and bring it over and blow my head off.
The State: Now, how long was this after when you had taken the knife away from, when he wasyou were out with him and he got drunk?
Parsons: A couple of weeks.
The State: A couple of weeks later?
Parsons: Yes.
*735 The State: And howwhat proximity was that to when he called you about [the decedent]?
Parsons: Two weeks later.
The State: Okay. So, we're talking about a month period, then?
Parsons: A month.
* * * * * *
On re-cross examination, appellant questioned Parsons concerning the extraneous offenses:
Appellant: All right. Now, you testified that Durand told you about some kind of threator, he communicated to you that John Howard said something to him about you and a gun; is that right?
Parsons: Yes, sir; that's right.
Appellant: Now, when did he communicate that to you?
Parsons: About two weeks before the murder.
Appellant: Can you be more specific than that?
Parsons: I don't know how to be more specific than that.
Appellant: Well, can you
Parsons: It was two weeks before the murder took place.
Appellant: You mean, before [the decedent] was killed?
Parsons: Yes.
* * * * * *
Appellant: All right. Now, did you take that statement from Durand seriously, or did you just blow it off as, you know, somebody just running his head?
Parsons: I just blew it off, at the time.
Appellant: Just blew it off, at the time, because you didn'tdid you report it to the authorities?
Parsons: No, sir.
Appellant: Did you call the police?
Parsons: No, sir.
Appellant: Didn't you take any action on it whatsoever?
Parsons: No, sir, I didn't.
* * * * * *
Appellant: Did you ever confront John Howard Abdnor with this?
Parsons: No, sir, I didn't.
Appellant: You never mentioned it to him?
Parsons: No, sir.
Appellant: So, no contact whatsoever?
Parsons: No, sir.
Appellant: Now, when John Howard Abdnor called you on July 25th, you claim, and talked to you the first time, from 11:30 up till 11:45 or 11:50, y'all talked about things other than [the decedent]?
Parsons: Yes, sir.
Appellant: Did you ever confront him with this threat that you claim Durand had related to you that John Howard had made?
Parsons: No, sir.
Appellant: Here's a man that you claim you're talking to him on the phone, and he's calling you on the phone, and you claim that he has made some kind of statement like that, or you've been told he's made some kind of statement like that, by Durand, and you talked to him for fifteen or twenty minutes, and say, "Hey, John Howard. What's this I hear about you saying you're going to get a gun [and] shoot me?"; you never did do that?
Parsons: No, sir, I didn't.
* * * * * *
Appellant: Now, at that point in time, or at any time in that second conversation, did you ever say, "Hey John Howard, what about when you threatened ..." or, "Did you threaten me" or "Did you tell Durand you was going to shoot me"?
Parsons: No, sir, I didn't.
* * * * * *
Appellant: All right. Nowand you say that two weeks or two Saturdays before that Sundaythirteen days before that Sundaythat was when you and John Howard had the incident where he pulled the knife on you?
Parsons: Yes, sir.
* * * * * *
*736 Appellant: Now, this occasion when you claim that John Howard pulled a pocket knife on you, what kind of pocket knife was it?
Parsons: It was a small pocket knife.
* * * * * *
Appellant: All right. And you said you kicked John Howard "a good one"; is that right?
Parsons: Yes, sir.
Appellant: Did you mean that literally; you kickedI mean, is that what you meant, literally?
Parsons: I kicked him to let him knew he couldn't get away with that.
Appellant: All right. At that point in time, had he already put the pocket knife back in his pocket; when you kicked him?
Parsons: Yes, sir.
Appellant: All right. So, what it was is two drunks was out, and y'all kind of got in an argument, and you got out of the car and he got out of the car, and he pulled a knife out of his pocket; right?
Parsons: No, sir. He got out of the car and came around to the passenger side and opened the door, and had the pocket knife in his hand.
Appellant: And then he put the pocket knife back up; right?
Parsons: That's right.
Appellant: All right. And you got out of the car, and you kicked him a "good one"?
Parsons: I kicked John, yes.
* * * * * *
Appellant: All right. Now, did he try to get the pocket knife back out to hurt you?
Parsons: No, he didn't.
* * * * * *
The State made references to the extraneous offenses during its closing jury argument when the State stressed the credibility of its witnesses.
The State: If Bryan Parsons is telling the truth, if Marsha Herring is telling the truth, it shows a predisposition, a pre-planning, a pre-thought process, on behalf of the Defendant.
[Appellant's Counsel] told you, he said, "I don't know how in the world anybody[the prosecutors]; whoever it may becould stand up in front of twelve people and vouch for the credibility of Bryan Parsons".
I can and I will, and I'll do my best to explain why.
* * * * * *
What did Bryan Parsons tell you? He said, "It was about that time that I contacted the D.A.'s office, and when it got close to trial, I said, `Hey, I made it all up'".
And why?
"Because of what I had seen in the newspapers", ladies and gentlemen, "and because of what the Defendant told Mike Durand he was going to do to me", and one other thing that is very important:
"I've seen what money can do, and after this case is over and, [the prosecutor], you're long gone and the jury's gone home, and if this man is convicted of what he should be convicted of, murder...
Appellant: Objection, Your Honor. He's outside the ...
The State: ... from the
Appellant: ... recordexcuse me, [to the prosecutor].
The State: He's outside the record; it's not a proper reference, and that testimony was also admitted for the limited purposes of the credibility of Bryan Parsons, and not for general purposes only.
The Court: I sustain the objection at this time.
Re-state ...
Appellant: May we have
The Court: ... or rephrase
Appellant: May we have the jury instructed to disregard that argument?
The Court: Disregard that, the way it was phrased.
*737 Appellant: Motion for mistrial, Your Honor.
The Court: Overruled.
Appellant: Exception.
The State: In connection with what he said to you: "... there won't be anybody there to protect me."
Now, how do we know he's telling the truth? Why should we believe him? Why should you believe him?
He said that hethe Defendant, he has been out with him; he's been drinking with him. He says that when he drinks and gets intoxicated, he gets violent, and gets in peoples faces.
Does Sandy Chasteen's testimony corroborate that?
Remember Donna saying, as far as the conversation with the father about the money; about that she had already spent her rent money on medical expenses, because of the Defendant's actions
Remember the
Appellant: Objection, Your Honor. That's not a properthat's not what she said. It's outside of the record, and it's totally false; fabricated.
The State: Well
The Court: If he just
Appellant: Your Honor ...
The State: that
Appellant: ... it's outside the record.
The Court: Excuse me.
Appellant: It's outside the record, Your Honor.
The Court: Stay in the record.
Appellant: May I have the jury instructed to disregardfirst off, is the objection sustained or overruled?
The Court: No, it's overruled.
I will instruct the jury to go by the record, the way they heard it.
Appellant: Note our exception.
The Court: It's noted.
The State: that "the Defendant had pulled a knife on me".
* * * * * *
The State: There's your corroboration for Bryan Parsons, and I'll stand by him, from the evidence.
If he wanted to sensationalize, he would have said the phone call took place the night of the murder. And what, possibly does he have to gain from doing that?
He told you that, at the time of the call, Mr. Warden and Mr Cotton were there, out there at Strawberry Fields, and [Appellant's Counsel] went into that, to a great extent.
It's very simple: bring them down here.
Did he?
The Defendant said, "I'll blow your head off ..."that's why he didn't want to testify"... with a .45".
Now, if Parsons is lying
Appellant: Excuse me. I'm going to object, Your Honor; that's not a correct statement of what the evidence was.
The Court: Well
Appellant: There is no testimony that the Defendant said that; there's testimony that Bryan Parsons said somebody else said that John Howard Abdnor said that.
The Court: Well
Appellant: That's an incorrect reference to
The Court: I overrule the objection, and instruct the jury to go by the evidence they heard.
The State: From Mike Durand
Appellant: Exception.
The State: From Mike Durand, who owned Strawberry Fields where the Defendant used to work and was terminated; that information was related by Mr. Durand to Mr. Parsons about what the Defendant would do; about kicking him after the Defendant pulled a knife on him, and we got into that.
After reviewing the entire record, we conclude the failure to limit the extraneous offenses harmed appellant in two ways: first, the jury was prejudiced by the similarity of the extraneous offenses to the charged offense, and second, the extraneous offenses *738 undermined appellant's insanity defense because the jury could have concluded appellant was capable of conforming his conduct.
B.
It is now axiomatic that a defendant is to be tried only on the crimes alleged in the indictment and not for being a criminal generally. Abdnor II, 808 S.W.2d at 478 (citing Wilkerson v. State, 736 S.W.2d 656, 659 (Tex.Cr.App.1987), and Crank v. State, 761 S.W.2d 328, 341 (Tex.Cr.App.1988)). Thus, evidence of extraneous offenses or bad acts committed by the defendant may not be introduced during the guilt/innocence portion of the trial to show the defendant acted in conformity with his criminal nature. Lockhart v. State, 847 S.W.2d 568, 570 (Tex.Cr. App.1992); Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Cr.App.1990), and Abdnor II, 808 S.W.2d at 478; Tex.R.Crim.Evid. 404(b). This is because evidence of extraneous offenses "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." Crank, 761 S.W.2d at 341. We have also recognized that a greater prejudice to the defendant results from the revelation of past criminal conduct than non-criminal "bad acts." Plante v. State, 692 S.W.2d 487, 490 n. 3 (Tex.Cr.App.1985).
Nonetheless, evidence of extraneous offenses is admissible for a limited purpose where such evidence is material and relevant to a contested issue in the case. Abdnor II, 808 S.W.2d at 478; Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972). See also, Lockhart, 847 S.W.2d at 571 (evidence of extraneous offenses is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."). Among the purposes for which extraneous offenses are admissible is to explain a witnesses' prior inconsistent statement. Abdnor II, 808 S.W.2d at 478 (citing Williams v. State, 604 S.W.2d 146, 150 (Tex.Cr.App.1980)). When extraneous offenses are admitted for a limited purpose, the defendant is entitled, on timely request, to an instruction by the trial judge to the jury limiting the jury's consideration of the extraneous offenses to those purposes for which they are admitted. Porter v. State, 709 S.W.2d 213, 215 (Tex.Cr.App.1986); Crawford v. State, 696 S.W.2d 903, 907 (Tex. Cr.App.1985); Hitchcock v. State, 612 S.W.2d 930, 930-931 (Tex.Cr.App.1981). Failure to give a limiting instruction, upon timely request, is "reversible error." Porter, 709 S.W.2d at 216.
We have consistently acknowledged that the introduction of extraneous offenses to the jury is inherently "prejudicial," Sattiewhite v. State, 786 S.W.2d 271, 285 (Tex.Cr.App.1989), and hence, harms the defendant, because it requires the defendant to defend against not only the offense charged but also his uncharged actions. See, Crank, 761 S.W.2d at 341; Robinson v. State, 701 S.W.2d 895, 899 (Tex.Cr.App.1985). See also, Plante, 692 S.W.2d at 490 n. 3. The admission of extraneous offenses also prejudices the defendant because of the jury's natural inclination to infer guilt to the charged offense from the extraneous offenses. See, Lockhart, 847 S.W.2d at 570, and Templin v. State, 711 S.W.2d 30, 32 (Tex.Cr.App.1986). A manner of lessening the prejudice from the extraneous offense is to give a limiting instruction to the jury. Robinson, 701 S.W.2d at 899. But where no limiting instruction is given, however, we must conclude that any prejudice resulting from introduction of the extraneous offense is unabated. See, id.
In Wood v. State, 118 Tex.Crim 99, 39 S.W.2d 1094, 1095 (App.1931), we noted that a limiting instruction is not necessary where the extraneous offenses are so dissimilar to the charged offense that the jury cannot mistakenly draw a connection between the charged offense, and the extraneous offenses. Id., 39 S.W.2d at 1095. See also, 23 Tex. Jur.3d Criminal Law § 2818 (1982) (and cases cited under n. 22). The underlying assumption, of course, was that the unlimited introduction of extraneous offenses similar to the charged offense harms a defendant because the jury will inevitably presume guilt from the extraneous offenses to the charged offense. See, Wood, 39 S.W.2d at 1095. We have subsequently found in a number of cases that the admission of extraneous offenses *739 similar to the charged offense, and admitted without limiting instructions, harmed the defendant because the jury was allowed to convict on the assumption that the defendant was acting in conformity with a criminal character. See, Lockhart, 847 S.W.2d at 570.
In Hitchcock v. State, 612 S.W.2d 930 (Tex. Cr.App.1981), the defendant was convicted of indecency with a child. At trial, the State introduced evidence that Hitchcock had committed other offenses, consisting of rape, incest, and sodomy. The trial judge denied Hitchcock's request for an instruction in the charge which limited the jury's consideration of the extraneous offenses. We held that a limiting instruction was warranted and reversed the conviction. Id., at 931.
Similarly, in Johnson v. State, 509 S.W.2d 639 (Tex.Cr.App.1974), the defendant was convicted of robbery. For the purposes of proving Johnson's identity in the charged offense, the State introduced evidence at trial of a separate robbery committed by Johnson against the same complainant. The trial judge denied Johnson's written request for an instruction in the charge which limited the jury's consideration of the extraneous robbery. We held the trial judge's failure to give a limiting instruction in the jury charge was reversible error because the charge, as given, allowed the jury to consider the extraneous robbery as evidence of Johnson's guilt in the charged offense, rather than simply proving his identity. Id., at 640.
Further, in Springfield v. State, 356 S.W.2d 940, 940-941 (Tex.Cr.App.1962), the defendant was convicted of illegally selling securities. In order to prove that Springfield was a dealer in securities, the State introduced evidence that Springfield made illegal sales of securities in addition to the charged offense. We held the trial judge committed reversible error by failing to give an instruction in the charge which limited the jury's consideration of the other sales to the purpose for which they were admitted, that is, to prove Springfield was a "dealer" in securities. Id., at 941.
Finally, in Jones v. State, 296 S.W.2d 271 (Tex.Cr.App.1956), the defendant was convicted of illegally selling whiskey in a dry county. The arresting officer testified at trial that appellant had used a twelve-year-old boy to act as go-between during the sale for which Jones was arrested. Id., at 272. On cross-examination, appellant denied ever using a young boy to sell whiskey for her. Id. To impeach Jones, the State introduced testimony by a different boy who testified that he had sold whiskey for Jones subsequent to the charged offense. Id. We held the trial judge's failure to give a limiting instruction in the jury charge was reversible error because the evidence that Jones had used children to sell whiskey prejudiced the jury. Consequently, the evidence of the subsequent sales could have been used by the jury for purposes other than merely impeaching Jones' testimony. Id., at 272.
In conducting its harm analysis, the Court of Appeals failed to discuss the cases we have cited nor cite any other caselaw which addressed the harm resulting from the unlimited introduction of extraneous offenses.[8]See, Abdnor III, 845 S.W.2d at 309. Thus, we review the Court of Appeals' harm analysis, keeping in mind that the court neglected our decisions which hold the harm resulting from the introduction of extraneous *740 offenses must be ameliorated, otherwise, there is "some harm."
In the instant case, the extraneous offenses were admitted for the limited purpose of explaining Parsons' inconsistent statements. Abdnor II, 808 S.W.2d at 478. However, the jury could have easily concluded from the evidence of the extraneous offenses that appellant possessed a violent character and was acting in conformity with that character when he committed the charged offense. This inference by the jury is supported by the similarity between the charged offense and the extraneous offenses since all the offenses involved violence or the threat of violence. Compare, Hitchcock, 612 S.W.2d at 931.
Further, the similarity of appellant's alleged telephone threat against Parsons likely prompted the jury to attribute guilt to the charged offense from the extraneous one. The threat appellant allegedly made against Parsons shared several characteristics with the charged offense which would naturally prompt the jury to conclude appellant acted in conformity with his criminal character with both offenses. See, Ransom v. State, 503 S.W.2d 810, 812-814 (Tex.Cr.App.1974), and 2 Ray, Texas Evidence, § 1521 (3rd ed. 1991). Parsons testified that during his telephone conversation with appellant, appellant stated:
"That bitch has really screwed up this time. If she walked through that door right now, I'd blow her head up against the wall."
Later, Parsons testified about the threat appellant made against him and communicated to Parsons' employer, Mike Durand:
[Durand] told me that John had called and said he was going to take a .45 and bring it over and blow my head off.
The similar characteristics between appellant's threat against the decedent and his threat against Parsons are obvious: Appellant allegedly telephoned Parsons' employer and threatened to kill Parsons just two weeks before he telephoned Parsons and threatened to kill the decedent. The jury's deliberations on the charged offense were undoubtedly influenced by the apparent connection between the charged offense, and appellant's alleged threat over the telephone to kill Parsons. Thus, the unlimited introduction of appellant's second extraneous offense allowed the jury to infer guilt to the charged offense.
Further, the trial judge took no steps to limit this inference by the jury either at the time the extraneous offenses were introduced or when the trial judge charged the jury. In Rose, we stated there is an presumption that the jury will properly consider evidence when correctly instructed by the trial judge. Id., 752 S.W.2d at 554 (citing Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Cr.App.1983)). Conversely, where no instruction is given, we cannot follow the presumption that the jury properly considered the evidence at trial. Thus, in the instant case, we cannot conclude the jury properly considered the extraneous offenses. Moreover, the State's references to the extraneous offenses during closing argument did not abate the prejudice resulting from their unlimited admission. Such references were partisan comments, rather than an unbiased instructions, and merely drew attention to appellant's alleged other offenses in addition to the one for which he was charged. See, Williams, 547 S.W.2d at 20.
C.
We also find the introduction of the extraneous offenses harmed appellant by undermining his insanity defense because the unrealized threats of violence against Parsons suggested appellant was able to conform his conduct to the requirements of the law. Abdnor II, 808 S.W.2d at 479 (Baird, J., concurring and dissenting op.). See also, Tex.Penal Code Ann. § 8.01(a) (Vernon's 1974).[9] The issue of appellant's sanity was strongly contested at trial. Appellant presented *741 three experts, Dr. Gene W. Rogers, the Abdnor family physician, Dr. George Mount, a psychologist, and Dr. Sanford Lehrer, a psychiatrist, to support his claim of insanity. All three testified at length that appellant had a mental history of paranoid schizophrenia and was suffering from paranoid schizophrenia at the time of the offense. Significantly, each expert opined that because of appellant's schizophrenia, appellant was unable to conform his conduct to the legal requirements at the time of the offense. To counter appellant's experts, the State presented Dr. Clay Griffith, a psychiatrist, who testified he examined appellant four months after the offense. From his examination of appellant Dr. Griffith concluded appellant was not insane at the time of the offense. Dr. Griffith further opined appellant was capable of conforming his conduct to the requirements of the law when he committed the offense.
We believe that any evidence which had bearing on appellant's capability of conforming his conduct at the time of the offense necessarily impacted upon appellant's insanity defense. The extraneous offenses introduced by the State are just such evidence. In particular, evidence of appellant's alleged telephone threat against Parsons was damaging because it contradicted appellant's evidence that was incapable of conforming his conduct. Appellant's carried out his threat to "blow [the decedent's] head up against the wall", but did not carry out his prior threat to "take a .45 and blow [Parsons] head off." A jury which had been instructed to consider the extraneous offense only as it pertained to Parsons' inconsistency might have disregarded such evidence as it pertained to the larger issue of appellant's sanity, but a jury lacking a limiting instruction in the charge certainly would not have. See, Rose, 752 S.W.2d at 554. The jury could have easily contrasted these two incidents and concluded that appellant was not insane at the time of the offense because he had refrained from carrying out the similar threat just two weeks earlier.
V.
We hold that the Court of Appeals erroneously concluded that appellant suffered "no harm" from the trial judge's failure to give a limiting instruction on appellant's extraneous offenses. Without an instruction in the charge which limited the jury's consideration of appellant's extraneous offenses, the jury was without the necessary guidance to accurately decide the facts of appellant's case. See, Williams, 547 S.W.2d at 20. As a result, the jury was unable to perform its function as fact-finder. Id. We find, therefore, that appellant suffered "some actual harm." Almanza, 686 S.W.2d at 171, and Arline, 721 S.W.2d at 351. The judgment of the Court of Appeals is reversed and the case is remanded to the trial court.[10]
CLINTON, J., concurs in the result.
McCORMICK, P.J., and WHITE and MEYERS, JJ., dissent.
NOTES
[1] Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1984).
[2] Appellants two grounds for review state:
Ground for Review No. 1:
The court of appeals erred in overruling appellant's point of error that he suffered harm from the failure of the trial court to instruct the jury about the limited purpose for which evidence of extraneous offenses was admitted.
Ground for Review No. 2:
The court of appeals erred by failing to discern the difference among a preserved charge harm analysis, an unpreserved charge harm analysis, and a Rule 81(b)(2) "beyond a reasonable doubt" harm analysis.
[3] All emphasis is supplied unless otherwise indicated.
[4] Tex.Code Crim.Proc.Ann. art. 36.19 (Vernon's 1981) provides:
Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 [V.A.C.C.P., relating to the trial judge's charge to the jury] has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.
[5] Tex.R.App.P. Rule 81(b)(2) provides:
If the appellant record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.
[6] In situations where a charging error implicates a state or federal constitutional right, we have applied the "harmless error" analysis from Rule 81(b)(2) rather than an Almanza harm analysis. See, Rose, 752 S.W.2d at 553-554 (Rule 81(b)(2) applied to unconstitutional instruction on parole law given in charge to jury).
[7] See, n. 2, supra.
[8] We note that while the cases we have uncovered were all decided prior to our enunciation of the "harm analysis" in Almanza, their holdings that the unlimited admission of extraneous offenses are reversible error are unaffected by Almanza. In Almanza, we merely required a defendant to show harm from a charging error before we would reverse. This requirement that harm be shown had no effect upon our recognition that certain charging errors are inherently harmful. We have consistently recognized both before and after Almanza that extraneous offenses are inherently prejudicial, and hence harmful to a defendant. See, Sattiewhite, 786 S.W.2d at 285. However, even this harm may be abated with a proper limiting instruction. See, id. See also, Robinson, 701 S.W.2d at 899. Our focus, therefore, is on the error in the context of the entire trial, not isolated in a vacuum. Where, as in the instant case, an error has been committed at trial, and the error is harmful, Almanza`s "harm analysis" necessarily requires us to determine whether the harm from the error was somehow abated. See, Arline, 721 S.W.2d at 351-352, and Almanza, 686 S.W.2d at 171. If it is not abated, then a defendant has certainly proven some harm.
[9] Tex.Penal Code Ann. § 8.01(a) was subsequently amended by the Legislature in 1983 to exclude a defendant's inability to conform his conduct to the law. See Acts 1983, 68th Leg., p. 2640, ch. 454, § 1. Because appellant committed the offense while pre-amended version of § 8.01(a) was still in effect, the issue of whether appellant was able to conform his conduct to the requirements of the law is valid regardless of whether he knew that his conduct was wrong.
[10] Having found that the Court of Appeals erred in applying its Almanza/Arline harm analysis, we need not address appellant's second ground for review.
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41 Pa. Commw. 174 (1979)
Joseph R. Thompson, Appellant
v.
Americo V. Cortese, Prothonotary of the Court of Common Pleas of Philadelphia County, Appellee.
No. 1146 C.D. 1977.
Commonwealth Court of Pennsylvania.
Argued September 29, 1978.
March 9, 1979.
*175 Argued September 29, 1978, before Judges MENCER, ROGERS and CRAIG, sitting as a panel of three.
Joseph R. Thompson, appellant, for himself.
Thomas Dempsey, with him Homer Cook Grasberger, for appellee.
OPINION BY JUDGE CRAIG, March 9, 1979:
This is an appeal from the dismissal of appellant's complaint in mandamus against the prothonotary of *176 the Court of Common Pleas of Philadelphia County. Appellant, attorney for the defendant in a trespass action, instituted this separate action to compel the prothonotary to accept a Praecipe to Enter Judgment based upon dismissal orders entered under former Local Rule of Civil Procedure § 350(1) (now Local Rule 130), which in relevant part provides:
Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary's office for a period of two (2) successive years, the action shall be dismissed with prejudice, for failure to prosecute under the provisions of this Rule, and the docket so marked, provided that no less than sixty (60) days' notice be given by publication once in [a newspaper of general circulation in the legal community].
Pursuant to the mandate of that rule, the prothonotary dismissed the trespass action with prejudice, for failure to prosecute, and so stamped the docket. Thereafter, appellant presented his praecipe.
The basic issue presented is whether it is the ministerial duty of the prothonotary to enter a judgment upon a praecipe of the party benefited by a purely administrative dismissal of a stale case.
The prothonotary is not "an administrative officer who has discretion to interpret or implement rules and statutes." Warner v. Cortese, 5 Pa. Commw. 51, 55, 288 A.2d 550, 552 (1972). Therefore, if documents tendered for filing are proper on their face and in conformity to rules of court, a prothonotary does not have discretion to refuse to enter them, Warner v. Cortese, supra, and mandamus then is the appropriate remedy to compel him to perform his ministerial duty. Stewart v. Bechtel, 360 Pa. 123, 61 A.2d 514 (1948); UEC, Inc. v. Board of Arbitration *177 of Claims, 12 Pa. Commw. 54, 314 A.2d 521 (1974).[1]
Consequently, although a judgment is in fact entered by the prothonotary, it nevertheless continues to be the judicial action of the court. See 6A STAND. PA. PRAC. Ch. 29, §§ 2-4, pp. 251-52.[2] Therefore, if the court has not specifically adjudicated the rights of the respective parties or directed the prothonotary to enter a judgment, the prothonotary's authority to enter a judgment must have an express basis in statute or rule of court, 6A STAND PA. PRAC. Ch. 29, §§ 18-20 and §§ 45-46, pp. 261-64 and 284-86, and the authority is confined to the circumstances spelled out by the statute or rule. See especially, Haverford Township School District v. Herzog, 314 Pa. 161, 171 A. 455 (1934); Rhinehart v. Jordan, 313 Pa. 197, 169 A. 151 (1933); Watkins v. Neff, 287 Pa. 202, 134 A. 625 (1926).[3]
*178 Appellant contends that Pa. R.C.P. No. 1039 provides the authority for the entry of judgment in this case. The Rule provides:
In addition to the provisions of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party, the prothonotary shall enter judgment upon praecipe of a party in the following instances:
(1) Upon a verdict of a jury, if no timely post trial motion is filed.
(2) When a court grants or denies relief, but does not itself enter judgment or order the prothonotary to do so. (Emphasis added.)
Thus the intermediate question is whether the administrative dismissal of a stale suit constitutes a denial of relief by the court.
Appellant assumes that a dismissal with prejudice for failure to prosecute a claim is a denial of relief to the plaintiff. However, such a dismissal with prejudice only means that the plaintiff whose complaint is thus dismissed cannot reinstate that complaint unless he first petitions the court to exercise its discretion to remove the non pros and establishes certain facts.[4]
Can a non pros be a denial of relief if it is not res judicata? A non pros does not deny relief in that it *179 is not an adjudication on the merits. Thus, if the statute of limitations has not run, a plaintiff previously non prossed can maintain a second suit upon the identical cause of action, provided only that he pay the costs incurred in the prior action. Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa. Super. 35, 361 A.2d 770 (1976). The Gordon-Stuart case expressly re-affirmed this rule following the earlier case of Bucci v. Detroit Fire & Marine Insurance Co., in which the court held:
[T]he legal effect of the non pros could not prevent the entry of a suit for the same cause of action within the statute of limitations. . . . The penalty suffered by the plaintiffs is the delay in the trial of their cause and payment of costs incurred, yet if the statute of limitations has not expired, the non pros of the first action cannot prevent the institution of the second suit.
109 Pa. Super. 167, 174, 167 A. 425, 427-28 (1933).
As a practical matter, the dismissal of the underlying case here could have barred relief because, if the complaint is not reinstated as of its original date, the statute of limitations might have run so as to preclude a viable new suit. However, it is clearly not feasible to place the adjudication of the statute of limitations question upon the shoulders of the prothonotary under Pa. R.C.P. No. 1039 upon mere presentation to him of a praecipe.[5] Thus, at best, it is uncertain whether the words "denial of relief" in the rule include the dismissal involved here.
*180 When the words of a rule are not free of ambiguity, the intent of the Supreme Court may be ascertained by considering among others, "(1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated; (3) the mischief to be remedied; (4) the object to be attained" and "(6) the consequences of a particular interpretation." Pa. R.C.P. No. 127(c). Here, all the above considerations point to the same conclusion.
The Procedural Rules Committee's explanatory comment to Rule 1039 indicates that subdivision (2) uses general language in order to avoid "inadvertently omitting" instances in which the rule would be applicable. However, a further reading of the comment, and the cases cited therein, make clear that the rule was not designed to be a catch-all for every conceivable kind of court disposition. Rather, the rule was directed primarily at a specific problem that had arisen in the appellate courts, premature appeals.[6]
Kane v. Allegheny County Retirement Board, 7 Pa. Commw. 262, 299 A.2d 686 (1973), provides an example of the kind of procedural gaffe which Rule 1039 is intended to eliminate. In Kane, a mandamus action, the lower court had ordered the defendant to pay the plaintiff-employees retirement benefits upon termination of their employment, but conditioned upon payment by plaintiffs of certain contributions to a fund. Defendant prematurely filed an appeal to this Court, never having first praeciped the lower court's order into a final judgment. Although *181 this Court considered the merits of the appeal in the interest of judicial economy, it also warned that it would continue to require strict conformity with proper procedure so as "to provide an orderly administration of appeals," 7 Pa. Commonwealth Ct. at 266, 299 A.2d at 688, meaning that a party must use Rule 1039(2) to convert a lower court's resolution of the merits of a case into a final judgment before appealing.
The clear inference from this Court's references to Rule 1039, as the Kane case illustrates, is that the rule should function primarily to forge the necessary judgment linking a jury's or lower court's final decision and the entry of an appeal.[7]
Thus it seems clear to us that the necessity for the rule, the circumstances under which it was promulgated and the mischief to be remedied by the rule all deal with the proper timing of an appeal from a decision of a court or jury which is otherwise not appealable until formally docketed as a judgment.
*182 We also observe that Rule 1039(2) originally provided for the entry of judgment upon praecipe of a party "upon a decision by the court granting or denying relief." (Emphasis added.) The explanatory comment of 1973 notes that the revision to omit the word decision was stylistic only. Therefore the deletion was not intended to work any substantive change. The word "decision" strongly connotes a judicial resolution of a question submitted to a court. As the lower court in this case noted, the dismissal of the trespass case was "merely an administrative procedure" undertaken "to close the dockets on stale cases" and did not involve a "consideration of the merits." We would add that it was not even occasioned upon the motion of a party to the case.
The consequences of our interpretation of this rule should be briefly noted. Pennsylvania Rule of Judicial Administration 1901 sets forth the mandate for the local rule of court which caused the dismissal of the original trespass action. These rules implement a judicial policy to resolve pending cases as promptly as possible. However, if a plaintiff's stale claim is accordingly dismissed, he may still petition the court to take off the non pros or bring a second action regardless of whether or not a formal entry of judgment has been made.[8] Therefore, our holding that the prothonotary has no authority to enter judgment upon the praecipe of a party in this case will neither *183 impede the policy effectuated by Pa. R.J.A. No. 1901 and the local rule of court nor dampen the effectiveness of the rules.
Additionally, the coupling of Rule 1039 onto a dismissal under the local rule in circumstances like these would allow a party to obtain a judgment of non pros without presenting a motion to the court or otherwise initiating any procedural steps forcing the other party to act or be put out of court. The securing of a judgment under such a procedure would result in a novel form of practice in the state.[9] Thus, acceptance of appellant's interpretation of Rule 1039, if not merely authorizing a useless formality, would constitute approval of a new kind of procedure with unforeseen repercussions in established areas of the law.
Unless the intent of Rule 1039 to grant the prothonotary the authority and impose the ministerial duty to enter a judgment in these circumstances were clear, we should not interpret a rule originally promulgated to ward off premature appeals to create a peculiar new procedural animal.
*184 The order below is affirmed.
ORDER
AND NOW, this 9th day of March, 1979, the order of the Court of Common Pleas of Philadelphia County, No. 5616 January Term, 1977, dismissing the plaintiff's complaint in mandamus, is hereby affirmed.
NOTES
[1] Mandamus will lie to compel performance of a ministerial act or mandatory duty where the plaintiff has a well-defined legal right, where there exists a well-defined corresponding duty in the defendant, and where the plaintiff has no other adequate remedy. Commonwealth ex rel. Lindsley v. Robinson, 30 Pa. Commw. 96, 100-101, 372 A.2d 1258, 1261 (1977) and cases cited therein; Shellem v. Springfield School District, 6 Pa. Commw. 527, 297 A.2d 179 (1972).
[2] Even though a rule of court or statute may require that a judgment be entered upon the proper praecipe of a party, such rules do not disturb the power of a court over its own judgment but merely provide a uniform procedure to have a judgment entered under certain defined circumstances. Glass v. Farmers National Bank of Watsontown, 364 Pa. 186, 70 A.2d 356 (1950); Holliday v. Foster, 221 Pa. Super. 388, 292 A.2d 438 (1972) (both cases recognizing that Pa. R.C.P. No. 1037(a) does not work any fundamental change in the nature of the judgment entered pursuant thereto.)
[3] These cases reveal a tendency to construe narrowly the circumstances triggering the authority under such a statute or rule. See, Watkins v. Neff, supra. See also, Lewandowski v. Crawford, 208 Pa. Super. 365, 222 A.2d 601 (1966); Dime Bank & Trust Co. of Pittston v. O'Boyle, 334 Pa. 500, 6 A.2d 106 (1939); Lamberton National Bank v. Shakespeare, 321 Pa. 449, 184 A. 669 (1936).
[4] The criteria are that: (1) the petition must be timely filed; (2) the reason for the default reasonably excused; and (3) facts constituting a cause of action alleged. International Telephone & Telegraph Corp. v. Philadelphia Electric Co., 250 Pa. Super. 378, 378 A.2d 986 (1977).
[5] Besides the unforeseen administrative and proof problems this would entail, it is clear that the bar of the statute of limitations is a matter to be raised by way of preliminary objections or new matter and is waived if not raised. Rules 1017(b) (4), 1030 and 1032.
[6] In Shellem v. Springfield School District, we noted that "Pa. R.C.P. No. 1039, in conjunction with Supreme Court Rule 20 1/2 [now substantially incorporated into Pennsylvania Rules of Appellate Procedure 301 and 904] sought to reduce the substantial number of premature appeals of which the case of Lynch v. Metropolitan Life Insurance Co., 422 Pa. 488, 222 A.2d 925 (1966), is illustrative." 6 Pa. Commw. 527, 531-32, 297 A.2d 179, 182 (1972).
[7] The explanatory comment to Rule 1039 gives further examples in which this rule would operate as: the entry of judgment after a refusal of judgment n.o.v., entry of judgment on the whole record after disagreement of the jury, entry of judgment after denial of a motion for new trial. The comment does not give any examples of the operation of this rule in a pre-trial situation; however, the committee note to Pennsylvania Rule of Appellate Procedure 301(c) (which requires that an order be reduced to judgment and docketed prior to appeal) provides some examples which could also apply to Rule 1039(2).
The Rules Committee note to Pennsylvania Rule of Appellate Procedure, Rule 301, bears out our view of the chief function of Rule 1039. The note states that Pa. R.A.P. 301(d), which commands the clerk of a lower court, upon praecipe of a party, to prepare and enter an order evidencing any action from which an appeal lies, provides "a remedy for the appellant where no appealable order has been entered, and is similar to Pa. R. Civ. P. 1039." (Emphasis added.)
[8] The International Telephone & Telegraph Corp., case, supra, indicates that the traditional criteria applied to a petition to open a non pros will also apply to a petition to reinstate a claim dismissed pursuant to the same local rule of court involved in the present case (timely filing of the petition, reasonable explanation for the delay and allegation of facts constituting a cause of action). Thus, at present, we tend to agree with appellee's contention that the formal entry of judgment here would be "superfluous" and a waste of time.
[9] Compare, Rules 1037(a), 1037(b), 1047, 1128, 1265(a), 1272 (d), 1272 (e), 1276(a), 1277(a), 1511(a), 1659, 3031(a), 3146(a), all of which expressly authorize the entry of judgment on praecipe of a party, prior to disposition on the merits, upon some specific form of default by the opposing party. All these rules require specific action on the part of that party to initiate the procedure which can eventually culminate in the entry of judgment for him if the opposing party does not timely respond to his opponent's move.
Moreover, a party moving the court to enter a non pros for unreasonable delay traditionally has borne a burden to show prejudice to himself as a result of the delay. James Brothers Co. v. Union Banking and Trust Company of DuBois, 432 Pa. 129, 247 A.2d 587 (1968); See also, Lewis v. Reid, 244 Pa. Super. 76, 85, 366 A.2d 923, 927 (concurring opinion), affirmed per curiam on rehearing, 244 Pa. Super. 599, 371 A.2d 872 (1976); Kennedy v. Board of Supervisors of Warminster Township, 243 Pa. Super. 46, 52, n.7, 364 A.2d 442, 445, n.7 (1976).
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398 A.2d 419 (1979)
Noel COTE
v.
ZONING BOARD OF APPEALS FOR the CITY OF BANGOR and the City of Bangor and Richard L. Wright, et als., Intervenors.
Supreme Judicial Court of Maine.
March 7, 1979.
*420 Rudman, Winchell, Carter & Buckley by John M. Wallach (orally), Paul L. Rudman, Bangor, for plaintiff.
Robert E. Miller, Bangor, for City of Bangor.
Eaton, Peabody, Bradford & Veague by Bernard J. Kubetz (orally), John E. McKay, Bangor, for intervenors.
Before McKUSICK, C. J., and POMEROY, WERNICK, DELAHANTY, GODFREY and NICHOLS, JJ.
PER CURIAM.
For the reasons discussed below, we dismiss the appeal in this case as moot.
In September of 1974, the plaintiff-appellee, Noel Cote, sought permission to build a nursing home on property he owned at 754 Ohio Street, Bangor, Maine. His application for a building permit was denied by the defendant-appellant, Zoning Board of Appeals for the City of Bangor (Board), in October of 1974. Thereafter, Cote appealed the denial by filing an 80B complaint in the Superior Court, Penobscot County. After granting intervenor status to certain individuals who owned property near the site of the proposed nursing home and who were opposed to the project, the presiding Justice in November of 1976 found the Board's decision to be arbitrary and unreasonable and ordered that the plaintiff be issued a building permit.
By a timely appeal, the Board and the intervenors challenged the Superior Court's decision. After the case was argued orally, the plaintiff conveyed title to the real estate to the Roman Catholic Bishop of Portland in September of 1978. The Bishop has applied for and received permission from the Board to construct a church. The Board has since moved the Court to dismiss the appeal as moot, a motion opposed by neither Cote nor the intervenors.
It is a fundamental appellate principle that the Court will not consider an appeal that has become moot except in extraordinary circumstances not present herein. Hazzard v. Westview Golf Club, Inc., Me., 217 A.2d 217, 224 (1966). See Toomey v. City of Portland, Me., 396 A.2d 1029 (1979); School Administrative District No. 61 v. Lake Region Teachers Association, Me., 328 A.2d 393 (1974); Smith v. State, Me., 254 A.2d 272 (1969). A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. In re Lawson's Estate, 41 Ill.App.3d 37, 353 N.E.2d 345 (1976).
In School Administrative District No. 61 v. Lake Region Teachers Association, supra, a case was moot where the teachers association, while appealing a stay of a pending arbitration proceeding, voluntarily terminated the underlying proceeding. Similarly, in Hazzard v. Westview Golf Club, Inc., supra, an appeal was mooted where, in contesting the confirmation of a receiver's sale of certain property, the appellants failed to seek a stay of the confirmation thereby conclusively vesting title to the property in a good faith third party purchaser. In circumstances not entirely dissimilar from those in the case at bar, the United States Supreme Court in Heitmuller v. Stokes, 256 U.S. 359, 41 S. Ct. 522, 65 L. Ed. 990 (1921), refused to decide a case because of mootness where in an action to recover possession of real estate the property was conveyed to a stranger pending appeal.
In the instant case, the subject matter in dispute, the property on which the plaintiff desired to build a nursing home, was conveyed to a bona fide third party who has been granted a permit to construct a church. The conveyance of title to the property ended the controversy between the parties.
The entry is:
Appeal dismissed without costs.
ARCHIBALD, J., did not sit.
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761 S.W.2d 531 (1988)
Juan M. ORTIZ and Gem Homes, Inc., Appellants,
v.
FLINTKOTE COMPANY d/b/a Genstar Building Materials, Appellee.
No. 13-87-468-CV.
Court of Appeals of Texas, Corpus Christi.
November 30, 1988.
Rehearings Denied December 30, 1988.
*533 Edward O. Garcia, Corpus Christi, for appellants.
James F. McKibben, Jr., Carlos Villarreal, Corpus Christi, for appellee.
Before NYE, C.J., and BENAVIDES and DORSEY, JJ.
OPINION
NYE, Chief Justice.
Appellants, Juan Ortiz and Gem Homes, Inc., sued appellee, Flintkote Company d/b/a Genstar Building Materials, for damages under the DTPA and under sections 2.314-2.316 of the Texas Business & Commerce Code, alleging misrepresentation and breach of warranty.
The case was tried to a jury, which found, among other matters, that:
1) Defective wallboard manufactured by Genstar was the producing cause of damages to Gem Homes;
2) Genstar had reasonable opportunity to cure the problem, but knowingly failed to do so;
3) Gem Homes suffered damages of $21,000 in lost profits and $18,000 in additional insurance premiums and interest payments; and
4) Gem Homes was entitled to $50,000 in additional damages.
*534 Upon motion by Genstar contending that Gem Homes had failed to prove up causation and damages, the trial court entered judgment for Genstar notwithstanding the verdict. Gem Homes now appeals, alleging nine points of error; Genstar alleges cross-points. We reverse and remand.
Gem Homes' primary complaint in this appeal is that the trial court's granting of Genstar's motion for judgment n.o.v. was improper because the evidence supports the jury's verdict. In taking up this matter, we address Gem Homes' first, second, fourth and seventh points of error and Genstar's first and fifth cross-points.
To affirm a judgment n.o.v., we must first determine that there is no evidence to support the jury's findings. Navarette v. Temple Independent School District, 706 S.W.2d 308, 309 (Tex.1986); Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex.1983). To determine whether there is any evidence upon which the jury could have based its verdict, we must review the evidence in the light most favorable to the verdict, considering only the evidence and inferences which support the verdict and rejecting the evidence and inferences to the contrary. Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Miller v. Bock Laundry Machine Co., 568 S.W.2d 648, 649-650 (Tex.1977); Tex.R.Civ.P. 301. A trial court may not disregard a jury's answer merely because it is against the great weight and preponderance of the evidence. Alm v. Aluminum Company of America, 717 S.W.2d 588 (Tex.1986). The pertinent special issues and answers to be considered in deciding the propriety of the trial court's judgment n.o.v. are those dealing with causation and damages.
First, we examine whether there is any evidence in the record to support the jury's finding that Genstar's defective wallboard was the producing cause of damages to Gem Homes. (We note here that Genstar does not argue that Gem Homes failed to prove that the wallboard was indeed defective or that the wallboard at issue was not manufactured by Genstar). Juan Ortiz, president of Gem Homes and a named plaintiff, testified without contradiction that Gem Homes had contracts to build three houses for sale to specified buyers. He also testified that defective wallboard manufactured by Genstar had been unwittingly incorporated into the walls of these three houses and that, because of the defective wallboard, Gem Homes could not sell these houses to those with whom it had contracted nor to anyone else. Juan and his brother, Bert Ortiz, both testified that the walls and ceilings in all three houses had bubbled, blistered, peeled, and bowed. Curtis Heldenbrand, a Genstar representative, admitted that he saw problems with the wallboard. Bert Ortiz also testified that the defective wallboard was dangerous. Roland Vasquez, a witness with whom Gem Homes had contracted to build one of these houses testified that he had been willing to close the sale on the house but for the faulty wallboard. He further testified that "you could push on the wall and the sheetrock would move."
This evidence, considered in the light most favorable to the jury finding, is ample and is much more than a scintilla that the wallboard manufactured by Genstar was a producing cause of damages to Gem Homes. We sustain appellants' points of error one, two and four as to the issue of causation.
Genstar's cross-point five, however, challenges the jury finding of causation as being insufficiently supported by the evidence and against the great weight and preponderance of the evidence. We shall treat this only as an insufficient evidence point because appellant, not appellee, had the burden of proof on causation. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).
In considering this point, we necessarily examine all of the evidence put forth on this issue. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (opinion on reh'g). The evidence supporting Gem Homes' contention that Genstar's defective wallboard was the producing cause of its Gem Homes damages is set forth above. *535 There is also evidence contrary to the verdict; the question is whether it is sufficient to allow the trial court to ignore the jury's answer affirming causation.
Roland Vasquez, the witness who testified that he would have bought the house but for the wallboard, also testified that there were other problems which induced him to back out of the contract, to wit:
1) the living room was not sunken as per Mr. Vasquez' request;
2) the plumbing for the master bath came out into the master bedroom instead of the bathroom;
3) the garage was not the size specified to accommodate his boat;
4) a hole in a fiberglass shower was never repaired;
5) the siding was not properly placed; and
6) the patio slanted towards the house so as to cause flooding.
Moreover, Mr. Vasquez testified that Bert Ortiz told him that if he would have an attorney write a letter to Gem Homes complaining specifically about the wallboard, Mr. Vasquez would be better able to avoid his contract to buy the house.
This amounts to some evidence that perhaps Genstar's defective wallboard did not cause all of the damages to Gem Homes as alleged; however, we are obliged to overrule Genstar's cross point because, upon examination of all of the evidence presented on causation, we cannot hold that the evidence above greatly outweighs the evidence in support of the verdict, nor that the verdict as to causation is manifestly unjust. Pool, 715 S.W.2d at 635.
The next issue to be addressed is whether Gem Homes came forward with evidence of damages to support the verdict. Juan Ortiz and another brother, Martin Ortiz, both testified that Gem Homes had had to pay an additional $14,000.00 in interest on the interim financing of these houses, from the fall of 1984, when the sales collapsed, to April of 1985, when the lender foreclosed. Martin Ortiz testified that these figures had been calculated from bank statements Gem Homes received from the lender. They also testified that Gem Homes had had to pay $3,000.00 in additional insurance premiums and taxes because these houses could not be sold.
We encounter a problem here when we attempt to coordinate the evidence of these damages with the jury finding. The jury found that Gem Homes had had to pay a sum total of $18,000 for two things: 1) additional insurance premiums; and 2) interest payments. The only evidence concerning these items showed a total of $17,000.00 in damages for 1) insurance premiums; 2) interest payments; and 3) taxes. The evidence as to damages for additional insurance premiums was inextricably intertwined with that for taxes; however, no special issue was requested or submitted on the issue of taxes. The proof does not support an award of $18,000.00 for the two items (i.e. insurance and interest). This court is not at liberty to speculate as to what amount the evidence would support. We cannot make findings of fact; we can only "unfind" them. Bellefonte Underwriters Insurance Co. v. Brown, 704 S.W.2d 742, 744-45 (Tex.1986); City of Watauga v. Taylor, 752 S.W.2d 199, 204 (Tex.App. Fort Worth 1988, no writ). Points of error one, two, four and seven are sustained as to actual damages. Genstar also complains by crosspoint that there is insufficient evidence to support the jury's verdict on damages for additional interest and insurance. We agree.
Point of error five complains that the trial court erred in failing to submit to the jury issues on cost of repair and incidental damages, arguing that the evidence is sufficient to support a finding on these. First, we examine the issue of "incidental damages." Section 2.715 of the Texas Business and Commerce Code defines the buyer's incidental damages. This definition cannot be applied to this case. Furthermore, Gem Homes failed to specify which of the alleged damages it would categorize as "incidental damages." Point of error five is overruled insofar as it refers to incidental damages.
However, the trial court also refused to submit a special issue to the jury on cost of *536 repair. Two problems are involved here: (1) whether Gem Homes was legally entitled to a special issue on cost of repair and (2) whether evidence of cost of repair was adduced so as to support the submission of the special issue.
Genstar argues that cost of repair is not a proper measure of damages because the property is no longer owned by Gem Homes nor will the repairs be effected. The assertion is that to allow Gem Homes an award for cost of repair would result in a windfall for Genstar and that, if anything, Gem Homes is entitled only to damages proved for lost profits. Genstar cites no legal authority for this proposition, and we disagree with the stance. Cost of repair is an appropriate measure of damages in a case such as this, where repair can be effected without impairing the entire structure or expending sums in excess of the value of the structure. Jim Walter Homes v. Valencia, 679 S.W.2d 29, 38 (Tex.App. Corpus Christi 1984), aff'd as modified, 690 S.W.2d 239 (Tex.1985); Lanphier Construction Co. v. Fowco Construction Co., 523 S.W.2d 29, 41-42 (Tex.Civ.App.Corpus Christi 1975, writ ref'd n.r.e.); Greene v. Bearden Enterprises, 598 S.W.2d 649, 653 (Tex.Civ.AppFort Worth 1980, writ ref'd n.r.e.).
Gem Homes owned three houses. These houses were found by the jury to be defective due to the poor quality of the Genstar wallboard. In general, profit is the gross proceeds of a business transaction less the costs of the transaction. See Black's Law Dictionary 1090 (5th ed. 1979). Cost of repair is not related to profit. Cost of repair is the amount it would cost to put the homes into the condition they would have been in had the wallboard been of merchantable quality. Cost of repair is a proper element of damages in this type of case.
In Greene, purchasers contracted with a builder for the construction and purchase of a triplex. As so often happens with construction contracts, the parties became dissatisfied with one another's performance and suit was had. In addressing the issue of whether cost of repair was an appropriate measure of damages, the trial court concluded that because the purchasers sold the triplex prior to trial, without remedying the defects, cost of repair was not an appropriate measure of damages. The appellate court disagreed, saying, "We are not troubled by this fact because even if the Greenes were still the owners of the triplex, there is no requirement recognized that they spend any recovery they may receive to make the repairs." Greene, 598 S.W.2d at 653. Thus, neither ownership of the property at the time of trial nor intent to perform the necessary repairs is relevant to a determination of whether Gem Homes was entitled to an issue on cost of repair. See Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex.1984).
In Lanphier Construction, the contractor sued the subcontractor for damages suffered by the contractor when paving material, laid by the subcontractor, proved to be defective. The jury awarded the contractor money for costs of repair as against the subcontractor who laid the asphalt. The jury also awarded the same amount to the subcontractor as against the supplier of the defective asphalt. The supplier, like Genstar, argued that cost of repair was an incorrect measure of damages. The court examined §§ 2.714(b), (c) and 2.715 of the Uniform Commercial Code and held that the supplier could have reasonably forseen that if the asphalt proved defective, it would have to be repaired. The same reasoning applies to the case we now address. Genstar should have reasonably foreseen that defects in its product would necessitate repair. Under the DTPA, a consumer can recover all of its actual damages. The courts have held this to be common law damages. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex. 1980); Jim Walter Homes, Inc. v. Mora, 622 S.W.2d 878, 883 (Tex.App.Corpus Christi 1981, no writ). Cost of repair is one element of common law damages. That Gem Homes failed to make the repairs is of no moment here. Greene, 598 S.W.2d at 653.
Finally, we note that there is evidence of cost of repair entitling Gem Homes to a *537 special issue on the element of damages. Martin Ortiz testified that it cost $21,000 to repair one house. Juan Ortiz testified that he analyzed the problem and that it would cost $22,000-$23,000 per house to repair them. He then described in detail what action would have to be taken to perform the repairs. This was ample evidence to support the submission of a special issue on cost of repair to the jury.
Furthermore, the deposition testimony of David Bott, erroneously excluded from evidence but brought before this court by bill of exception, provides evidence of cost of repair so as to entitle Gem Homes to a special issue. The trial court refused to admit Mr. Bott's deposition because it was not on file one day prior to trial. We have examined the procedural rules concerning depositions and their use at trial and can find no requirement that a deposition be on file one day prior to trial in order to be used at trial. The rule relied upon by the trial court is applicable only in situations involving a motion to suppress a deposition. See Tex.R.Civ.P. 207. We sustain Gem Homes' fifth point of error to the extent that it refers to the issue of cost of repair.
By way of cross-points two, three, four and seven, Genstar complains that the evidence was insufficient and inappropriate to predicate a finding of additional damages of $50,000.00. We agree.
The court's charge defines additional damages as an amount which may be awarded as an example to others and as a penalty or by way of punishment or as compensation for the inconvenience or expense of litigation, except attorney's fees, in addition to any amount which may have been found as actual damages. In response to Special Issue No. 9 the jury awarded Gem Homes $50,000.00 in additional damages.
Gem Homes alleged and proved breach of the implied warranty of merchantability. Exemplary damages, however, cannot be awarded in Texas for ordinary breach of warranty. A.L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629, 631 (1943); Canon, U.S.A. v. Carson Map Co., 647 S.W.2d 321, 323 (Tex. App.Corpus Christi 1982, no writ). However, Gem Homes also alleged and proved that Genstar violated section 17.50(a)(2) of the DTPA by breaching the implied warranty of merchantability on the wallboard it manufactured. The DTPA does allow exemplary damages for breach of warranty, but these are conditional. Tex.Bus. & Com.Code Ann. § 17.50(b)(1) (Vernon 1987). The DTPA provides that if the trier of fact finds that the proscribed conduct of the defendant was committed knowingly, the trier of fact may award up to three times the amount of actual damages in excess of $1,000.00. There was no finding that Genstar knowingly breached the implied warranty of merchantability.
The jury, however, did find that Genstar knowingly failed to cure the defective wallboard, but there is no proof in the record that Genstar expressly warranted to Gem Homes that it would repair, replace or "cure" any defects in the wallboard, and this Court has found no law to support an implied warranty to cure or repair. See Tex.Bus. § 2.312-2.315 (Vernon 1968). Failure to cure or repair is not among the false, misleading, or deceptive acts or practices prohibited by the DTPA, nor, by definition, is it an unconscionable action or cause of action. See Tex.Bus. § 17.46(b), 17.45(5), and 17.50(a) (Vernon 1987). We cannot determine where Genstar was found to have knowingly committed conduct proscribed by the DTPA.
After viewing all the evidence in the light most favorable to the verdict, we hold there is no evidence to support the jury finding of $50,000.00 in additional damages. To that extent we overrule Gem Homes' points of error relating to damages, and we sustain Genstar's second, third, fourth and seventh cross-points.
We have determined that we must reverse the trial court's judgment n.o.v.; however, we can not render a judgment on the verdict. The evidence necessary to predicate exemplary damages under the DTPA was insufficient, and the evidence of *538 damages for interest payments, insurance premiums, and taxes does not support the jury finding. Fairness to the parties dictates that the case be retried as a whole. Nor does the evidence support the verdict as to actual damages. Furthermore, appellee has contested, on appeal, its liability in a case involving unliquidated damages. We are precluded from remanding the case only on the issue of damages. We therefore REMAND the case in its entirety to the trial court. Tex.R.Civ.P. 81; Turner, Collie & Braden v. Brookhollow, Inc., 642 S.W.2d 160 (Tex.1982); County Management, Inc. v. Butler, 650 S.W.2d 888 (Tex. App.Austin 1983, dism'd agr.). See Mader v. Aetna Casualty and Surety Co., 683 S.W.2d 731 (Tex.App.Corpus Christi 1984, no writ).
We duly note that other issues were raised by this appeal, but in light of the fact that we must reverse and remand the entire case on that herein discussed, it is unnecessary to address them and we decline to do so.
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115 F.2d 764 (1940)
UNITED STATES
v.
FAWCETT et al. (two cases).
Nos. 7396, 7399.
Circuit Court of Appeals, Third Circuit.
October 23, 1940.
Rehearing Denied December 2, 1940.
*765 Samuel C. Sonnenfeld and B. D. Oliensis, both of Philadelphia, Pa., for appellants.
William F. Smith, Acting U. S. Atty., and W. Orvyl Schalick, Asst. U. S. Atty., both of Trenton, N. J., for appellee.
Before JONES, and GOODRICH, Circuit Judges, and GANEY, District Judge.
GANEY, District Judge.
The defendants, Robert Fawcett and Harry Nelson, were indicted on two counts. The first count of the indictment charged that on or about the 10th day of August, 1939 at Bellmawr in the District of New Jersey, the defendants did knowingly, unlawfully and feloniously sell to one Ellis Anderson, with the intention that the same should be uttered, published and passed as true and genuine, forty counterfeit obligations of the United States. The second count charged that, at the same time and place the defendants did possess the same forty counterfeit obligations. The indictment as returned by the Grand Jury of the District of New Jersey on October 10, 1939 charged "Robert Fawcett and Harry Nelson" as above indicated. The indictment was amended by order of court on December 15, 1939, with respect to the name "Harry Nelson", so as to make it read *766 "Harry Nelson otherwise known as Leo Wilson". On the same day the defendants plead "not guilty", and on the 4th of March, 1940 were tried together. On the following day a verdict of guilty was rendered on both counts as to both defendants. The defendants moved in arrest of judgment and for a new trial, alleging that certain prejudicial errors led to their conviction. Upon denial of these motions, appeal was taken to this court.
The argument most seriously pressed upon us for consideration is that the amendment allowed by the District Court making the addition, "otherwise known as Leo Wilson" is fatally defective. At common law it was beyond question that in the English courts the body of an indictment could not be amended. The reasoning behind this rule was that the finding of a grand jury was upon oath and, depending upon this fact amongst others for its validity, could not be amended by the court or the presiding officer in any manner of substance without the concurrence of the grand jury which presented it; Rex v. Wilkes, 4 Burrow 2527, Hawkins Pleas to the Crown Bk. 2, C. 25, Sec. 97. This doctrine has been followed in the Federal courts and whenever an amendment of substance has been made in the body of an indictment, the courts have been quick to hold it violative of the Fifth Amendment of the Constitution, providing that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury"; Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849; Dodge v. United States, 2 Cir., 258 F. 300; Stewart v. United States, 9 Cir., 12 F.2d 524. This is true even if the defendant agrees that the facts stipulated should have the same effect as if set forth in the indictment, United States v. Norris, 281 U.S. 619, 50 S. Ct. 424, 74 L. Ed. 1076. However, an examination of the cases will show that the prohibition has been directed against amendments to the body of an indictment, and no case has been found where our courts have ruled directly on the question of whether the change in name of the defendant, by the amendment of the indictment to that effect, before plea is entered, and where no question of the identity of the defendant is involved, would be such a substantive change as would be violative of the Fifth Amendment.
In various states, such as New York, Pennsylvania, New Jersey, Virginia, etc., statutes have permitted amendments to indictments which are merely formal, and which in no wise affect or prejudice the rights of the defendant. Statutes providing for the amendment of the name of a defendant are common among states permitting such amendments. These statutes were resorted to in the various states to avoid the delay and inconvenience of the roundabout method of the common law system of criminal procedure. For when a person who was indicted put in a plea of abatement on the ground of misnomer and such a plea was found to be true, the result was that he either had to be discharged or proceedings against him for the alleged crime by the name designated in his plea had to be begun de novo; 1 American Criminal Law, Sec. 537; Hale's P.C. 176, 238.
Congress in all probability motivated by the same desire as the States to relieve against formal technicalities both on the civil and criminal side of the law enacted two remedial statutes.
In 18 U.S.C.A. § 556, it was provided that "no indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant". Likewise in Sec. 269 of the Judicial Code, 28 U. S.C.A. § 391, there is provided "on the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties". These statutes, we think, evidence the intention of Congress to eliminate the effect of all purely technical and formal defects which in no wise prejudice a defendant, or affect his substantial rights, on the theory that, in the progress of the law, narrow formalism should be eliminated and only the attainment of substantial justice sought. In the instant case the defendant raised no objection to the addition "otherwise known as Leo Wilson" at the time the government requested the change of the name in the indictment; no objection was made by the defendant to the change at the time of the entry of his plea of not guilty, and in fact throughout *767 the whole case no objection was raised by the defendant to this addition, nor was any question ever raised as to the identity of the defendant. The question was only raised and for the first time at the close of all the evidence by a motion in arrest of judgment.
The test as to whether the defendant is prejudiced by an amendment to an indictment has been said to be whether a defense under an indictment as it originally stood would be equally available after the amendment is made, and whether any evidence the defendant might have would be equally applicable to the indictment in the one form as in the other; State v. Moyer, 76 Or. 396, 149 P. 84. As the court says in Lasure v. State, 19 Ohio St. 43, at page 50, "Blackstone (vol. IV, marginal paging 302) thus defines it: `An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury.' An indictment, then, is an accusation of a person of crime. It is an accusation against a person, and not against a name. A name is not of the substance of an indictment. And a person may be well indicted, without the mention of any name, and designating him as a person whose name is to the grand jurors unknown".
Since the defendant was in no wise misled or prejudiced in any degree whatever by the change and no substantive right affected thereby, it is clear that the name by which he was indicted could have nothing to do with the question of his guilt, the character of the offense, the nature or degree of criminality or punishment attached to it, or with the evidence which should be sufficient to warrant conviction. Therefore the change herein made was only one of form and comes within the meaning of the statutes herein referred to. It was properly allowed.
Furthermore, the objection by the defendant to the change of the name in the indictment as raised in his motion in arrest of judgment comes too late. At common law when an indictment assigned to a defendant merely a wrong Christian name or surname, he could only take advantage of the error by a plea in abatement, the burden of proof which was on the defendant. This was equally true of a wrong addition to a name. And so when a prisoner desired to raise any question as to the name under which he was charged in an indictment, he was compelled when called upon to plead, distinctly to raise that question by a plea in abatement, stating his real name. It was a rule upon all pleas in abatement that the one who took advantage of such flaws must at the same time show how they could be corrected. The question thus raised was tried by a jury and if the finding was in favor of the defendant, the indictment was abated; United States v. Howard, Fed.Cas.No.15,402, 1 Sawyer 507; Commonwealth v. Zinkeris, 79 Pa.Super. 85; 1 Bishop's New Criminal Procedure Sec. 677-2.
While on motions in arrest of judgment, the judgment will be arrested where no indictable offense is set forth; Commonwealth v. Hinds, 101 Mass. 209; where the statute creating the offense has been intermediately repealed, United States v. Goodwin, C.C., 20 F. 237; where the case has been tried by more or less than twelve jurors, State v. Meyers, 68 Mo. 266; it is clear that if a misnomer of the defendant is not met by a plea in abatement, it is too late for objection after trial as failure to plead the misnomer in abatement cures the defect where the plea is not guilty and for the purpose of the case the prisoner has the name given in the indictment; Wharton's Criminal Pleading and Practice, 9th Ed., 761; 3 Wharton's Criminal Law, Sec. 70; 1 Bishop's Criminal Practice 2d 791; Commonwealth v. Butler, 1 Allen, Mass., 4; United States v. DeQuilfeldt, C.C., 5 F. 276; Sherman v. United States, 4 Cir., 80 F.2d 629; Kilrow v. Commonwealth, 89 Pa. 480; United States v. Gale, 109 U.S. 65, 3 S. Ct. 1, 27 L. Ed. 857. Accordingly, if the defendant here wished to raise the question of his being indicted under a wrong name, he should have plead the misnomer by a plea in abatement. His failure to do so and his election to proceed to trial without raising the question bars him from attempting to raise it for the first time by a motion in arrest of judgment.
The second point pressed upon the court for consideration was the alleged error of the trial judge in admitting over objection of counsel the testimony of a witness, Matthew J. Tierney, that the defendant Wilson had purchased merchandise from him in Philadelphia on the night of August 23, 1939 for which Wilson gave him a ten dollar bill, which, according to the testimony of the government witness, was counterfeit and had apparently been printed from the same plates as other counterfeit ten dollar *768 bills, Exhibits G-1-G-8. Counsel for the defendant Wilson contends that this is a separate and distinct offense and was prejudicial to the defendant.
It is a general rule of law that a distinct crime unconnected with that laid in the indictment cannot be given in evidence against a prisoner; Shaffner v. Commonwealth, 72 Pa. 60, 13 Am.Rep. 649; Boyd v. United States, 142 U.S. 450, 12 S. Ct. 292, 35 L. Ed. 1077. However, there are certain exceptions which allow the proof of other offenses in order to establish the intent or motive of the defendant if one or more of these elements must be proved in order that the guilt of the defendant may be established. The offense here charged is one in which intent and knowledge are requisite elements of proof, and accordingly the conduct of the defendant at or near the time charged in the indictment is admissible. The intention of a person charged with a crime can hardly ever be shown by direct evidence and for this reason it is permissible to introduce evidence of other acts of a similar nature; Withaup v. United States, 8 Cir., 127 F. 530; Olson v. United States, 8 Cir., 133 F. 849; Colt v. United States, 8 Cir., 190 F. 305; Samuels v. United States, 8 Cir., 232 F. 536, Ann.Cas. 1917A, 711. Here the act shown by the testimony complained of was connected with the offense charged in the indictment in that there was testimony by the government agent that the counterfeit ten dollar note given to Tierney was made from the same plates from which the counterfeit notes, G-1-G-8, were made. The intent as to other offenses was clearly interwoven in the offense charged and the evidence was admissible. Parker v. United States, 2 Cir., 203 F. 950.
Stress has been laid by counsel on the fact that if the circumstances shown by the government are believed by the jury, to wit: that the defendant sold forty ten dollar bills for $140, this in and of itself shows criminal intent and there was no necessity for showing other acts. However, the fact that the government has shown by a circumstance some evidence of knowledge on the part of the defendant of the act charged, does not preclude it from showing knowledge and intent by other acts. Schultz v. United States, 8 Cir., 200 F. 234; United States v. Brand, 2 Cir., 79 F.2d 605; Means v. United States, 2 Cir., 6 F.2d 975.
The third point urged as error relates to the trial court's instruction to the jury "that Anderson's testimony is corroborated in some small degree". This instruction to the jury was very amply taken care of by the specific instruction of the court to the effect that the testimony of Anderson as an accomplice was to be closely scrutinized, "and viewed with suspicion because it comes from a poluted source". That a jury may convict on the testimony of an accomplice alone is not open to doubt. Holmgren v. United States, 217 U.S. 509, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann.Cas. 778; United States v. Corso, 7 Cir., 100 F.2d 604. Further, the court, after an exception was taken to the charge concerning the statement that the testimony of Anderson was somewhat corroborated, specifically stated to the jury that, in this connection, they serve as the sole and only triers of the facts and not the court or counsel.
Accordingly, the instructions here were proper and the rights of the defendant properly protected. Harris v. United States, 2 Cir., 273 F. 785.
The judgment appealed from is affirmed.
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761 S.W.2d 924 (1988)
297 Ark. 358
Russell Jay WILLMON, Appellant,
v.
Deborah Lynn HUNTER, Appellee.
No. 88-225.
Supreme Court of Arkansas.
December 19, 1988.
*925 Walter G. Riddick, Little Rock, for appellant.
Gary M. Arnold, Benton, for appellee.
HOLT, Chief Justice.
Two questions are presented by this appeal: (1) does public policy prohibit a man from seeking to establish his paternity of a child conceived during the mother's marriage to another party yet born out of wedlock, and (2) is the presumption of the legitimacy of a child conceived during a marriage irrebuttable? The answer to both questions is no.
On April 25, 1986, Dwight Hunter commenced divorce proceedings against appellee Deborah Lynn Hunter. About this time, appellant Russell Jay Willmon allegedly entered into a sexual relationship with Deborah Hunter which continued until June 1986. Subsequently, on July 3, 1986, Dwight was granted an uncontested divorce. Deborah Hunter gave birth to a child out of wedlock in February 1987. She remarried Dwight Hunter on April 15, 1987.
On April 24, 1987, Willmon filed a complaint in county court against Deborah Hunter alleging that he was the father of a child born to her on February 3, 1987. He asked that the court determine paternity and award permanent custody of the child to him. On August 13, 1987, the county court conducted a hearing. From the pleadings, testimony of the plaintiff, statements and arguments of counsel, the county court found "that it lacks subject matter jurisdiction, and, therefore, plaintiff's complaint in paternity and petition for custody, should be, and is hereby denied." From this finding, Willmon appealed to circuit court.
On November 19, 1987, the circuit court reviewed the pleadings of the parties, heard arguments of counsel, and dismissed the suit, stating:
(1) The presumption of legitimacy of the child which is the subject of plaintiff's action, is irrebuttable by the facts presented.
(2) It is against the public policy of this state to allow a third party to attempt to illegitimize a child as sought herein.
Willmon appeals to us from the trial court's order of dismissal.
Ark.Code Ann. § 9-10-104(a) (1987) provides that any man alleging to be the father of an illegitimate child may petition the county court for a determination of the paternity of the illegitimate child. Although Chapter 10 of our Code, which deals with paternity, does not provide us with a definition of the term "illegitimate child," it is generally conceded that an illegitimate child is a child who is born at the time that his parents, though alive, are not married to each other. Likewise, it has long been a general principle of law that a child is considered legitimate if the parents were married at the time of its conception and before its birth, even though they were not married to each other at the time the child was born. Madden v. Madden, 338 So. 2d 1000 (Miss.1976); State v. Bowman, 230 N.C. 203, 52 S.E.2d 345 (1949). That principle was recognized by our General Assembly when enacting legislation concerning inheritance. The General Assembly declared "that a child born or conceived during a marriage is presumed to be the legitimate child of both spouses for all purposes of intestate succession." (Emphasis *926 ours.) See Ark.Code Ann. § 28-9-209 (1987).
The trial court was wrong in finding that the presumption of legitimacy of a child conceived, but not born during marriage, is irrebuttable. Likewise, the trial court erred in holding that it is against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived, but not born, during marriage. In fact, one of our more recent cases strongly suggests to the contrary. In Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), Patti Ann Pacheco brought suit to determine the paternity of a child born to her on June 3, 1984. She was married at the time of conception and at the birth of the child to Carlos Pacheco, but claimed that Vincent Thomas was the father. Blood tests indicated that the husband could not be the father and that it was virtually certain (99.5%) that Thomas was the father. This court did not make mention of irrebuttable presumptions of legitimacy of a child conceived during a marriage or a public policy of this state not to allow a third party to illegitimize a child which was conceived during a marriage. To the contrary, we permitted the parties to litigate the issues of illegitimacy. In doing so we stated "marriage is still considered an honorable institution; children born during marriage should be deemed legitimate, and legal efforts to declare such children illegitimate are not and should not be made easy." We noted,
Belief in that principle is so great that we have created a legal presumption to protect it. This presumption, that a child born during marriage is the legitimate child of the parties to that marriage, is one of the strongest presumptions recognized by law. [citation omitted] It is rebuttable only by the strongest type of conclusive evidence....
See Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987); Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976).
The same thing can be said with reference to children conceived but not born during marriage; presumptions should work in favor of legitimacy. These presumptions, however, do not preclude a party from litigating the issue of paternity. Moreover, we do not have, nor do we declare, a public policy which would prohibit such litigation.
Since under these facts we are not faced with an irrebuttable presumption, nor a public policy which precludes a determination of the paternity of a child conceived but not born during the mother's marriage, it is necessary that we reverse and remand this case to the trial court.
Ark.Code Ann. § 9-10-118 (1987) provides that the circuit court shall hear cases de novo and shall render such judgment on appeal from the county court as law and evidence require. Accordingly, the trial court should hear this matter on its merits.
REVERSED AND REMANDED.
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502 F. Supp. 36 (1980)
Robert D. MONIHEN, a minor, by his parents and natural guardians, Richard G. and Betsy A. Monihen and Richard A. Monihen and Betsy A. Monihen, in their own right
v.
OLIVER MACHINERY COMPANY
and
Juniata Valley Union School District
and
Wayne Sollenberger
Civ. A. No. 79-3804.
United States District Court, E. D. Pennsylvania.
June 30, 1980.
*37 Jack E. Feinberg, Philadelphia, Pa., for plaintiff.
Joseph V. Pinto, Philadelphia, Pa., for Oliver Machinery.
J. P. Kelley, Philadelphia, Pa., for Juniata Valley and Sollenberger.
MEMORANDUM
TROUTMAN, District Judge.
A lathe, apparently revolving at a rate faster than the setting indicated, broke a wooden bowl on which plaintiff was working. A piece of the bowl struck him on the head and caused severe injuries for which he seeks recompense. Plaintiff named as defendant the lathe manufacturer, Oliver Machinery Company, which later joined as third-party defendants plaintiff's industrial arts teacher and school where the accident occurred. Oliver Machine Company now moves to transfer the matter to the United States District Court for the Middle District of Pennsylvania. Plaintiff resists the change, but alternatively seeks transfer to the United States District Court for the Western District of Pennsylvania.
A district court may transfer a civil action to any district where plaintiff could have instituted suit[1] "for the convenience of parties and witnesses" and in the "interests of justice", 28 U.S.C. § 1404(a), which
by its broad implications subsumes the other criteria, [and] requires a court to consider accessibility to sources of proof, availability of compulsory process for attendance of unwilling witnesses, the cost of obtaining attendance of willing witnesses, public interests and policy as well as the private interests of the litigants, the ability to implead third parties, and all other practical problems that make trial of a case easy, expeditious and inexpensive.
Bartolacci v. Corporation of the Presiding Bishop, 476 F. Supp. 381, 382-83 (E.D.Pa. 1979) (citations and footnotes omitted).
Although application of this standard occasionally defies facile resolution, its purpose and principles evolving therefrom provide useful assistance. Generally, the purpose of § 1404 is
*38 to prevent waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense ... and ... specifically, to afford relief to the defendant by placing him on an equal footing with plaintiff in the selection of a forum ... Each case must be decided according to the particular circumstances present.
Usually a plaintiff's choice of forum receives deference, but it is not always controlling; otherwise [this section] would be meaningless. This is particularly true where none of the conduct complained of occurred in plaintiff's selected forum. Defendant, the movant, has the burden of showing that trial would more conveniently proceed and the interests of justice would be better served in the [transferee] district.
Bartolacci v. Corporation of the Presiding Bishop, 476 F.Supp. at 383. Defendant has amply demonstrated that the interests of justice impel transfer. Only one witness, a psychologist and vocational expert, lives in the Eastern District of Pennsylvania. In the Western District of Pennsylvania plaintiff remains hospitalized indefinitely. He received most of his medical care from physicians and hospitals in the Western District. The insurance adjuster and some of defendants' employees who inspected the lathe reside there. These considerations require the conclusion that venue properly lies in the Western District of Pennsylvania. Accordingly, defendant's motion to transfer the above captioned matter will be granted.
NOTES
[1] The parties do not contest the availability of any of the three suggested fora. See 28 U.S.C. § 1404(a) (language quoted above) and 28 U.S.C. § 1391 ("a corporation may be sued in any judicial district in which it is ... licensed to do business or is doing business").
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484 Pa. 211 (1979)
398 A.2d 1019
COMMONWEALTH of Pennsylvania, Appellant,
v.
Dennis BARNETT.
Supreme Court of Pennsylvania.
Argued November 13, 1978.
Decided March 16, 1979.
*212 Steven H. Goldblatt, Deputy Dist. Atty.-Law, Maxine J. Stotland, Asst. Dist. Atty., Philadelphia, for appellant.
Stephen R. Bolden, Philadelphia, for appellee.
Before O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.
OPINION OF THE COURT
O'BRIEN, Justice.
This appeal by the Commonwealth of Pennsylvania is from an order of the Court of Common Pleas of Philadelphia, which suppressed certain physical evidence[1] during the trial of appellee, Dennis Barnett. The suppression court *213 held that appellee's arrest was not based upon probable cause and, therefore, certain physical evidence had to be suppressed. We agree with the holding of the suppression court and will affirm its order.
The facts, as found by the Suppression Court, are as follows:
"1. The defendant was arrested on June 10, 1977 in the City of Philadelphia, Pennsylvania.
"2. The arrest was without a warrant although a warrant had been issued by the authorities on June 7, 1977, but the arresting officers had no knowledge of the warrant nor any information concerning the defendant.
"3. On June 10, 1977 at or about 11:15 A.M. Officers Devereaux and Wallace were in plain clothes on patrol in an unmarked car.
"4. The officers observed the defendant walking in the 900 block of North Percy Street, Philadelphia with his hands in the front pockets of a three-quarter length raincoat.
"5. The defendant on two occasions looked in the direction of the officers and then ducked behind a parked car as the officers' car passed.
"6. As the officers stopped and alighted from the car the defendant ran.
"7. Officer Devereaux called for the defendant to stop without identifying himself as a police officer.
"8. Officer Wallace pursued the defendant and during the chase saw him discard a 38 caliber pistol and a short distance later a box of ammunition.
"9. Subsequently Officer Wallace apprehended the defendant at or near 10th and Poplar Streets, Philadelphia, and after a struggle subdued him.
"10. Later, Officer Wallace recovered the gun and bullets discarded by the defendant."
A ballistics exam revealed that appellee's gun had been used in the June 6, 1977 shooting death of seven-year-old Kent Bennett. Appellee was subsequently charged with *214 murder and various firearms offenses for the shooting of Bennett. He was also charged with assault, resisting arrest and other firearms violations arising from the June 10, 1977 arrest. While the various charges had been severed for trial, a single suppression hearing was held as only one issue of law was involved.
Following the hearing on the motion to suppress, the court ordered both the pistol and the bullets suppressed. It is from this order that the Commonwealth now appeals.
In Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), we reviewed the following factual situation:
"On the afternoon of November 6, 1970, four police officers in an unmarked police automobile observed Jeffries walking along a public street in Pittsburgh. One officer testified when Jeffries saw the officers, he `quickened his pace'. Upon seeing him do so, the officer left the police vehicle and started to pursue Jeffries, who then began to run. While giving chase, the officer observed Jeffries throw a cigarette package under an automobile parked along the street. Shortly thereafter, the officer overtook Jeffries and directed him to stand against a wall. At that moment the other officers arrived on the scene and they were told by the officer, who apprehended Jeffries, to `hold him one minute'. The officer then recovered the cigarette package from underneath the parked vehicle, and it was found to contain several foil-wrapped packages of a substance later determined to be heroin." Id., 454 Pa. at 322, 311 A.2d at 916.
There, we held that flight alone was insufficient to constitute probable cause for arrest. Further, we held that the police had no right to stop Jeffries under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), as the officers were unable to articulate any facts which indicated that criminal activity was afoot. We further held that based on this factual setting, the property was abandoned because of unlawful police coercion, and thus the heroin should have been suppressed. We can find no factual distinction between Jeffries and the instant case which is sufficient to *215 allow the Jeffries holding to be distinguished. Jeffries thus supports the finding in the instant case that appellee's arrest was not based on probable cause.
The Commonwealth, however, argues that the officers had the right to make a limited investigatory stop. As we stated in Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342-343 (1970):
"A policeman may legally stop a person and question him. But he may not without a warrant restrain that person from walking away . . ., unless he has `probable cause' to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped . . . that the policeman may reasonably conclude that criminal activity may be afoot. . . ." (Footnote omitted.)
We must thus view the totality of the circumstances to determine whether appellee was being "stopped" or was merely approached for allowable questioning by the officers.
As we stated in Commonwealth v. Jones, 474 Pa. 364, 371, 378 A.2d 835, 839 (1977):
". . . If a citizen approached by a police officer is ordered to stop or is physically restrained, obviously a `stop' occurs. Equally obvious is a situation where a police officer approaches a citizen and addresses questions to him, the citizen attempts to leave, and the officer orders him to remain or physically restrains him; here too a `stop' occurs. A more difficult situation arises where no order or physical restraint is involved and the citizen does not attempt to walk away."
In the instant case, the facts are clear that Officers Devereau and Wallace were attempting to stop appellee. As there was nothing on which to base a belief that criminal activity was afoot, appellee was free to walk away. Yet, when he attempted to leave, the officers chased him down the street. Under these circumstances, the suppression court was correct in finding that the officers did more than merely approach appellee for the purpose of allowable questioning. *216 The police conduct here amounted to a coercive factor which was the main reason that appellee abandoned the weapon.
Finally, the Commonwealth argues that appellee's alleged attempt to shoot Officer Wallace allowed the subsequent seizure of both the pistol and the bullets. We need not, however, address the merits of the Commonwealth's position. While Officer Wallace testified that appellee attempted to shoot him, the suppression court evidently chose not to believe him, for the court's findings of fact contain no mention of the alleged attempt to shoot Officer Wallace. Thus, the Commonwealth has no evidence on which to base a claim of intervening criminal conduct which allowed the admission into evidence of the seized material. As we believe Jeffries to be controlling, we must affirm the order of the Suppression Court. See Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978).
Order affirmed.
EAGEN, C.J., took no part in the consideration or decision of this case.
POMEROY, former J., took no part in the decision of this case.
LARSEN, J., files a dissenting opinion in which NIX, J., joins.
LARSEN, Justice, dissenting.
I dissent. We are bound to accept explicit findings of facts unless they are wholly lacking support in the record. Commonwealth v. Willis, 483 Pa. 21, 394 A.2d 519 (1978) citing Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).
In the instant case, the court below made no explicit finding that appellant did not attempt to shoot Officer Watson. Thus, the findings of the suppression court indicate a lacunae regarding this attempted shooting. This case should be remanded to the suppression court for more specific findings on this factual issue.
NIX, J., joins in this dissenting opinion.
NOTES
[1] As the suppressed evidence will substantially handicap the instant prosecution, this appeal is properly before the court. Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).
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115 F.2d 189 (1940)
DAVISON-PAXON CO.
v.
CALDWELL.
No. 9645.
Circuit Court of Appeals, Fifth Circuit.
October 29, 1940.
Rehearing Denied January 14, 1941.
Houston White, of Atlanta, Ga., for appellant.
John D. Allen and R. B. Pullen, both of Atlanta, Ga., for appellee.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
HUTCHESON, Circuit Judge.
The suit was to enjoin the enforcement by garnishment against plaintiff of a state court judgment for debt. It was brought in the bankruptcy court on the ground that the debt had been discharged in bankruptcy, and because of the settled but erroneous state of the decisions in Georgia,[1] plaintiff had been compelled to invoke the jurisdiction of the bankruptcy court.[2] The defendant *190 contested the suit on the ground (1) that the matter was one for decision in the state courts and not for the invocation of the bankruptcy jurisdiction; (2) that the judgment it had obtained was a conclusive adjudication that the debt was not discharged in bankruptcy. The district judge maintaining his jurisdiction on Hunt v. Loan Company and determining the effect of the state court judgment on the pleadings in that court, concluded that the debt was dischargeable and had been discharged and granted the relief prayed.
This appeal tests the correctness of that ruling. This is the record on which it rests.
On February 22, 1939, appellant here filed suit against appellee in the municipal court of Atlanta for $444.58 on account of merchandise purchased from it for the period from September, 1936, to December, 31, 1938, as per itemized statement attached to the petition. On March 2, 1939, she filed a plea to the jurisdiction of the state court based on her alleged non-residence, and on March 6, 1939, she filed her voluntary petition in bankruptcy scheduling defendant as one of her creditors and was duly adjudged bankrupt.
On March 24th, appellant filed in the state court suit an amendment alleging:
"1. That at the time the defendant purchased the merchandise listed on the itemized statement marked `Exhibit A' and attached to the petition, defendant was insolvent and had no present intention to pay for same and concealed her insolvency and intention to pay for same, and concealed her insolvency and intentions with respect to said purchases from your petitioner.
"2. That your petitioner relied on the defendant's promise to pay for same, and was damaged in that it lost merchandise of the value listed in the itemized statement marked `Exhibit A.'
"3. That the action of the defendant in purchasing said merchandise without a present intention to pay for same, and knowing her promise to pay for same was false, was deceitful and fraudulent.
"4. That your petitioner is damaged in the sum of $444.58, plus interest at 7% per annum from August 1, 1937 to date."
Whereupon, on March 29th, appellee defendant in that suit filed a plea for a stay, setting out therein that the debt upon which the suit was predicated was dischargeable in bankruptcy. On April 3rd, the plea to the jurisdiction was overruled, as waived by defendant's filing her plea for a stay in bankruptcy, and there was a judgment as follows:
"The within case coming on before me for trial after the petition was amended and facts introduced to support the amendment with reference to all allegations therein and the petition,
"It is considered, ordered and adjudged that the pltf. recover of the defendant in the sum of Three Hundred and Twenty and 88/100 ($320.88) Dollars and all costs of this action."
Appellee was granted her discharge and it was ordered that she "be discharged from all debts and claims in bankruptcy which are made provable by said acts against her estate excepting such debts as are by law excepted from the operation of a discharge in bankruptcy." In July, 1939, she filed in the bankruptcy court, an application for injunction, reciting these facts and that notwithstanding her discharge, Davison-Paxon, plaintiff in the state court suit, had sued out a garnishment against her employer to collect on the judgment debt which had been discharged in bankruptcy.
It was not denied below, it is not denied here, that the decisions of Georgia are to the effect that a debt contracted as, according to the amended petition this debt was, is, within the exception of Sec. 17, sub. a (2), of the Bankruptcy Act,[3] "a liability for obtaining money or property by false pretenses or false representations." What was in question below, what is in question here is whether a debt created as this one was, according to the allegations of the amended petition, is such a liability.
The district judge thought it was not. We agree. But for the Georgia decisions holding that the purchase of goods with no present intention to pay, results in a debt which is a liability for obtaining money or property by false pretenses and false representations, we should regard the question as admitting of only one answer. The amended petition carefully refrains from charging that the defendant represented anything or made any pretenses. It charges that she was insolvent, that she had no present intention to pay for the goods purchased and that *191 she concealed her insolvency and intention to pay for the same from the plaintiff and that her conduct in purchasing the merchandise without present intention to pay for same and knowing that she was insolvent, was false, deceitful and fraudulent. We think it can hardly be doubted that her conduct in so doing was deceitful in the sense that she did not act in a straightforward and honest way in not making full disclosure of her financial condition, but such conduct is not within the exception. It does not except from discharge, debts created by obtaining credit through concealment of insolvency and present inability to pay. It excepts from discharge "Liabilities for obtaining money or property by false pretenses or false representations." Within the meaning of that statute then, there were no false pretenses, no false representations here. There was merely the obtaining of credit without full disclosure with the knowledge that if full disclosure had been required, credit might well not have been given, but that was all. A remedial statute, like that of bankrutpcy intended for the relief of debtors, must, insofar as denial of discharges and therefore of relief, be construed strictly so that all debts except those coming exactly within the exception will stand discharged. Gleason v. Thaw, 236 U.S. 558, 35 S. Ct. 287, 59 L. Ed. 717.
Appellant, conceding of course that the judgment in the state court suit is not res judicata of the question whether the debt was dischargeable in bankruptcy, because the judgment was rendered before the discharge, insists that the judgment is conclusive, that the facts are as pleaded in the amendment, and that, though there was no overt statement or representation made, the purchase on credit was an implied representation that appellee intended to and could pay for the purchased goods.
In support of this view appellant in addition to its reliance on the Georgia cases puts its reliance on the generally settled rule of law that a purchase of the kind pleaded is deceitful and because of that deceit, the sale may be rescinded. This is certainly true but this is not the question before us. That question is, does the statute except from the discharge all obligations affected with deceit or fraud in their incurring whether the deceit or fraud is actual or implied, or does it except only those where there is actual overt false pretense or representation? We think it clear that only the latter are excepted. In Zimmern v. Blount, 5 Cir., 238 F. 740, 744, we have said so: "A fraud may be committed in ways other than by the making of false representations, and be actionable. In considering the third count, as an original cause of action, independent of the plea of discharge in bankruptcy, it would be unimportant whether the alleged fraud was committed by the making of false representations or otherwise. However, in considering the second replication to the plea of discharge in bankruptcy, as a sufficiently answer to it, it is important to determine not only whether the replication sufficiently charges fraud, but fraud `by obtaining property by false pretenses or false representations,' which is the only kind of fraud that prevents the release of bankrupt from his provable debts. Section 17a (2), Bankruptcy Act of 1898 as amended."
In re Nuttall, D.C., 201 F. 557, is to the same effect as are also the following state cases: Miller v. Sutliff, 241 Ill. 521, 89 N.E. 651, 24 L.R.A.,N.S., 735; J. M. Radford Grocery Company v. Halper, Tex.Civ.App., 274 S.W. 1023. No cases are cited to us, we have found none, except the Georgia cases holding that debts, incurred as these were, are excepted from the discharge.
Appellant does indeed cite texts and decisions holding that where the buyer at the time of the purchase is insolvent and intends not to pay for the goods, it is a fraud which will render his title voidable. It cites too, a Georgia Code Section, 96-206, providing: "Where one who is insolvent purchases goods, and, not intending to pay therefor, conceals his insolvency and intention not to pay, the vendor may disaffirm the contract and recover the goods, if no innocent third person has acquired an interest in them." But it cites no cases from either federal or state courts construing the bankruptcy statute as excluding from the discharge cases of this kind, where, though it may be conceded that the debts were created by fraud, there were no false pretenses or representations. Indeed, it could not cite any, for it is settled law that debts created by the fraud of the bankrupt are not excepted by the operation of the discharge, unless so created while he was acting as an officer or in a fiduciary capacity. Crawford v. Burke, 195 U.S. 176, 25 S. Ct. 9, 49 L. Ed. 147; Bullis v. O'Beirne, 195 U.S. 606, 25 S. Ct. 118, 49 S. Ct. 340; Zimmern v. Blount; In re Nuttall, supra. The only kind of fraud which will prevent a discharge is that committed by fraudulent misrepresentations of fact or by such conduct *192 or artifice having a fraudulent purpose as will throw one off his guard and will cause him to omit inquiry or examination which he would otherwise make. It is not claimed that there was such misrepresentation, artifice or trick. It is merely claimed that the application for credit coupled with plaintiff's silence as to her insolvency and "present intention" constituted misrepresentation or pretense.
We do not think that this will do. The judgment was right. It is affirmed.
SIBLEY, Circuit Judge (dissenting).
The amending of the suit on account in the State court into one for damages for deceitful obtaining of goods was regular. Ga.Laws of 1913, p. 164, § 37(c). Though done to meet a bankruptcy, it was upheld in Levy v. Kiser Co., 31 Ga.App. 113, 120 S.E. 34. The resulting judgment is entirely valid, and ought to be accepted as establishing that a value of $320.00 of goods was obtained as alleged. In the District Court neither side sought to show what the evidence before the State court was, or the real truth of the case, if that were permissible. The District Judge ought not to have speculated about it. The majority opinion concedes this.
The liability adjudged is not one for a debt for goods purchased, but for damages by a deceit in obtaining goods that would otherwise not have been delivered. It arises under the familiar principle that one deceived into making a contract has the option either to rescind the contract and recover what he parted with the very goods , or to let the contract stand and recover the damage done him by the deceit. Hartsfield Co. v. Newlin, 49 Ga.App. 546, 176 S.E. 516; Louisville Dry Goods Co. v. Lanman, 135 Ky. 163, 121 S.W. 1042, 28 L.R.A.,N.S., 363, 135 Am. St. Rep. 451. See also Bacon & Co. v. Moody, 117 Ga. 207, 43 S.E. 482. The measure of the damage is not the price agreed to be paid, but is the loss really suffered by making the contract the true value of the goods which may or may not equal the price charged. The case is not proven by showing merely a purchase by an insolvent who does not disclose his insolvency, although he afterwards goes into bankruptcy. Brooks v. Pitts, 24 Ga.App. 386, 100 S.E. 776. It must be shown that in offering to buy he had no intention of paying, knew he could not be made to pay, and intended to get the goods without paying; in short, that he pretended to be a purchaser but was in truth a deadbeat and a cheat. It is not a case of mere failure to mention a fact where there is no confidential relationship to require it. By the act of offering to buy in the place of trade he presents himself as a purchaser at least of good intentions. Many instances occur, even in criminal law, where such conduct, coupled with a morally fraudulent purpose, is esteemed a false representation and punished, though no express falsehood is told. If a purchaser without means knows he is supposed by the storekeeper to be some other person of wealth, and by silence on the point obtains credit, no one would doubt there was a false pretence. He was pretending to be another person. So one who presents an order for money which is payable to another impliedly represents himself to be that other. Rex v. Story, R. R. 60. One who sells property knowing it is not his, to the loss of the buyer, by offering to sell has impliedly represented that it was his. Reg. v. Samson, 52 L.T.Rep.,N.S., 772. One who gives a check which he knows is bad to obtain goods, though he says not a word about it, has obtained the goods on a false pretence, because by universal practice a check is drawn only against a bank which is bound to pay. If he in like manner gets one to endorse such check to the indorser's damage, there is an implied false pretence. Guernsey-Newton Co. v. Napier, 151 Wash. 318, 275 P. 724. When a little girl bought goods to the amount of twenty-five cents and tendered in payment a twenty dollar gold piece which she thought was a dollar, and the merchant, perceiving the mistake, gave her change for a dollar, saying nothing, he was a cheat and a swindler. Jones v. State, 97 Ga. 430, 25 S.E. 319, 54 Am. St. Rep. 433. So in Crawford v. State, 117 Ga. 247, 43 S.E. 762, opinion by Judge Lamar, afterwards Justice Lamar, the indictments charged cheating and swindling because the defendants "did falsely and fraudulently represent" that the boundaries of land on which they were selling the timber were otherwise than they knew the truth to be. The evidence was that months previously the defendants had in good faith so stated the boundaries, but afterwards had become aware that a large portion of the timber included was not theirs. In a new negotiation, without saying anything, they signed a conveyance written by the purchaser which showed he still thought the boundaries were as previously represented. The failure to correct the mistake, *193 and the act of taking the money paid under mistake was held cheating and swindling. Though not a legal authority, the most celebrated deceit case in history is instructive here, that of Ananias; Acts of the Apostles, Chap. 5, Verses 1 to 5. By the preceding verses it appears that by selling all their property and putting the entire proceeds into a common relief fund the contributors were acquiring a high repute and a right to future support. In order to acquire both, Ananias sold his property and without any express statement paid in a part only of the proceeds, intending that it be understood to be all. Peter emphatically pronounced his conduct a lie, though only an implied false representation. Sapphira's case, which follows, rested upon an express false representation. No difference was recognized in their punishment.
We have here to do, not with criminal statutes, their strict construction and their refined distinctions, but with a bankruptcy statute which intends to discharge honest debtors from their honest debts but to reprove commercial dishonesty, and expressly denies discharge from a "liability for obtaining money or property by false pretences or false representations." In deliberately chosen words the Congress indicates a difference between false pretences and false representations. The latter may appropriately mean express misrepresentations. "False pretences" more appropriately refer to implied representations, or conduct intended to create and foster a false impression. In both cases of course an intended deceit is essential. In either a discharge is made ineffectual.[*]
In applying this provision of the Bankruptcy Act, Judge Russell, later the Chief Justice of the State, says for the court on the exact point now before us: "A false representation may consist in the purchasing of goods with no present purpose of paying for them, and in contemplation of a fraudulent insolvency. To buy goods without a present intention to pay is a false representation of one's intention. Therefore to buy goods without a present intention to pay will avoid a discharge. Of course, ordinarily, promises to perform some act in the future will not amount to fraud in legal acceptation, although subsequently broken without excuse. This is especially true of a promise to pay money. Otherwise any breach of contract would amount to fraud." Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga.App. 299, 68 S.E. 1077, 1078. This ruling has since been consistently adhered to in the Court of Appeals. The Supreme Court of Georgia in Wells v. Blitch, 182 Ga. 826, 187 S.E. 86, 90, along the same line of thought, held that a discharge in bankruptcy did not relieve the bankrupt from a liability to his sister which arose by his selling incumbered land to her for cash, leading her to understand that he would discharge the incumbrance with the money but intending at the time not to do so. The court said: "To accept money as one's agent, without a present intention of using the money * * * for the benefit of the bailor, is a false representation of one's intention, and will avoid a discharge."
The Georgia court does not stand alone. The case of Guernsey-Newton Co. v. Napier, 151 Wash. 318, 275 P. 724, above cited, in which the endorser without express misrepresentation was induced to put his name on a bad check, holds that discharge in bankruptcy did not relieve from the liability to the endorser who had the check to pay. In Boerner v. Cicero Smith Lumber Co., Tex.Civ.App., 293 S.W. 632, it was held that lumber bought with no intention to pay for it creates a liability for property obtained by false pretences which is not discharged in bankruptcy. In Higginbotham-Bartlett Co. v. Powell, Tex.Civ. App., 270 S.W. 193, the same law was recognized, though the case ended otherwise because fraudulent intent not to pay was not proven. In Louisville Dry Goods Co. v. Lanman, 135 Ky. 163, 121 S.W. 1042, 28 L.R.A.,N.S., 363, 135 Am. St. Rep. 451, the purchase of goods with intent not to pay, with an election to sue for deceit, was held to create a liability not discharged in bankruptcy. Zimmern v. Blount, 5 Cir., 238 F. 740, cited in the majority opinion, in no way resembles a case of the fraudulent buying of goods. I do not regard it as *194 holding that an express false representation is always necessary to avoid the effect of a discharge. The other federal case relied on In re Nuttall, 201 F. 557, is from a District Court. The Judge in his discussion did express discontent with the ruling of the Georgia Court of Appeals, but his decision went no farther than to hold the question doubtful enough to justify enjoining the suit in the State court until the discharge should be granted and the matter be more deliberately examined. I think it clear that one who offers to buy goods and promises to pay, expressly or impliedly, and at the time has no purpose of paying, but intends to obtain the goods for nothing, does obtain them by a false pretence and is not entitled to a discharge from his liability in tort.
NOTES
[1] Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga.App. 299 (2), 68 S.E. 1077; Levy v. M. C. Kiser Company, 31 Ga.App. 113, 120 S.E. 34; Crawford v. Davison-Paxon Co., 46 Ga.App. 161, 166 S.E. 872.
[2] Local Loan Company v. Hunt, 292 U.S. 234, 54 S. Ct. 695, 78 L. Ed. 1230, 93 A.L.R. 195.
[3] 11 U.S.C.A. § 35, sub. a(2).
[*] United States v. Fox, 95 U.S. 670, 24 L. Ed. 538, dealt with a statute which punished anyone who within three months before bankruptcy "under the false color and pretence of carrying on business, and dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud." Rev.St.U.S. § 5132. The statute was held void as ex post facto and invading the States' police power; but one can hardly doubt that a false pretence of carrying on business, as Congress used the words, might be made by other than an express declaration.
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398 A.2d 333 (1978)
John M. MORRIS, Appellant,
v.
UNITED STATES, Appellee.
No. 12259.
District of Columbia Court of Appeals.
Argued February 15, 1978.
Decided July 21, 1978.
As Amended November 28, 1978.
*334 Robert P. Mosteller, Public Defender Service, Washington, D. C., for appellant.
Jeffrey Blumenfeld, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Michael W. Farrell, and Alexia Morrison, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.
NEWMAN, Chief Judge.
Convicted by a jury of armed robbery and possession of a prohibited weapon (sawed-off shotgun), appellant challenges the admission of testimony concerning the description of the robbers given by the complainant to police officers immediately after the robbery. Appellant also argues that the trial court abused its discretion in refusing to permit cross-examination of appellant's girlfriend as to his actual use of her father's car on the day of the incident. We affirm.[1]
In the early afternoon of August 4, 1976, Daryl Covington was robbed by two men, one of whom was armed with a sawed-off shotgun. During the course of the robbery, Covington, along with Kenneth E. Bryant, had the opportunity to observe both robbers. During the robbery, one of the robbers fired the shotgun at Covington. As the robbers fled, Covington noted that their getaway car was a beige 1975 or 1976 Chevrolet Nova or Pontiac Ventura (both of *335 which were of a similar body design) with District of Columbia license plates, the first three numbers of which were either 2-7-0 or 2-0-7. Covington pursued the robbers. After failing to catch them, he flagged down Metropolitan Police Department (MPD) Officer Lester Howard who was in a police car cruising on Alabama Avenue, S.E. He gave Officer Howard a description of both the getaway car and the robbers.
Working from Covington's description of the car, MPD Detective James Colbert obtained a computer printout listing eleven 1975 and 1976 Novas carrying the appropriate first three license plate numbers. Of those eleven, only one was beige, the color of the getaway car as described by Covington. That car was registered to Edward Brantley, but was used by Brantley's daughter, Gwenievere Etienne. Subsequent investigation disclosed that Etienne's boyfriend, appellant John M. Morris, matched the description supplied by Covington of one of the robbers. Covington later selected appellant from a photo array, identified him in a lineup, and identified him in court as one of the persons who robbed him at gunpoint.
At trial, and over the objection of defense counsel, Covington repeated the description of the robbers which he had provided to the police immediately following the robbery:
[T]all, slender build, thin features, and wore glasses . . .. Approximately six-one, maybe six-two . . . . Light, brown skin . . . . [H]is face features were real thin, reminded me of someone who had been sick maybe . . because . . . his face features were sort of sunken somewhat. . . . [H]is glasses were thick, . . . tinted lenses; frames I think were brown.
During cross-examination, Covington was questioned extensively concerning his description of the assailants. Defense counsel explored alleged inconsistencies between his description testimony given to the grand jury and the description he had testified to during direct examination.
Over objection, Covington's description of the robbers was also recounted to the jury by Officer Howard. To refresh his recollection of Covington's description, Officer Howard perused a transcript of the description which he had transmitted for broadcast over police radios immediately after the incident, as well as the MPD Form 251 which he had used to record Covington's report of the incident. On cross-examination, defense counsel thoroughly probed for inconsistencies between Covington's initial description, as recounted by Howard, and his later descriptions.
Covington's description was repeated, again over objection, by Detective John Love. Following Love's testimony, the trial court sua sponte gave a cautionary instruction:
There have been recitations here, if you believe them, about certain statements made by the complaining witness in this case to the officer. The fact that they are given to the officer obviously don't make them true or untrue in the case. You've got to determine on their truth from the time that you heard the witness' testimony from the stand itself. These statements are admitted here only as they may or in your judgment may not affect the credibility of the original witness to the case. Because the testimony of a witness may be rehabilitated or supporting that he previously made statements which are consistent with his present testimony in court and this is the only reason for which these are admitted, not for the truth of the statements themselves.
The government's final witness was Gwenievere Etienne. On direct examination, she testified that her father was Mr. Edward Brantley, that during August 1976 she used a beige 1975 Nova, and that she was appellant John Morris' girlfriend. Defense counsel sought to cross-examine Etienne as to whether Morris did in fact have access to, or the use of, her automobile on August 4, 1976, the day of the robbery. The trial court refused to permit this line of cross-examination, concluding that the requested line of cross-examination exceeded the scope of direct examination: "[T]his *336 isn't a broad or British cross-examination jurisdiction. We still do abide by the rule that the scope of the direct is the measure of the cross."
Appellant called Etienne as a defense witness. She testified that during August 1976, she and appellant lived together. She stated that she then owned a beige 1975 Nova, but that Morris was not permitted to use the car.
Etienne also provided testimony which was consistent with appellant's alibi defense. She stated that on the day of the robbery, she drove her car to work, returned home at about 11:30 a. m., picked up Morris, drove with him to perform various errands, and dropped him off at the apartment at about 12:45 p. m. whereupon she immediately returned in her car to work. On cross-examination, Etienne was impeached with three prior inconsistent statements she had made to the grand jury: (1) before the grand jury, she stated that she remembered August 4 because it was a payday, but at trial she testified that she received no paycheck that day; (2) in her trial testimony, she identified a different bank as the bank to which she went with Morris on the day of the robbery; (3) before the grand jury she stated that her brothers had used her car and gone somewhere with Morris on perhaps one occasion only, but at trial she testified that this had never occurred.
At the conclusion of the defense evidence, the case was submitted to the jury which returned a verdict of guilty. This appeal followed.
The first issue presented by appellant in this court concerns the admission of Covington's description of his assailant which he provided to the police immediately following the robbery. Appellant argues that the testimony of Covington, Officer Howard, and Detective Love recounting Covington's description was inadmissible as both hearsay and a prior consistent statement and that he was prejudiced by its admission. The government contends that the rationale of the line of cases validating the admission of out-of-court identifications, e. g., Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S. Ct. 1318, 22 L. Ed. 2d 567 (1969), likewise supports admissibility of the out-of-court description of the culprit given by the victim of a crime to police authorities.
"Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." C. McCormick on Evidence § 246 at 584 (2d ed. 1972). Pursuant to Anglo-American legal tradition, hearsay evidence was historically excluded at trial because it failed to satisfy one or more of the three primary prerequisites to the admissibility of testimony: oath, the personal presence of the declarant at trial, and the availability of the declarant for cross-examination so as to test both his credibility and the accuracy of his statement. C. McCormick, supra § 245 n.25, citing Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484 (1937). Today, this third factor "the lack of opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is reported by the witness" is considered the major justification for the exclusion of hearsay evidence. Id. See also Fed.R.Evid. 801, Advisory Committee Notes.
As with any rule, that concerning hearsay is replete with exceptions. Thus, where the circumstances surrounding the out-of-court statement satisfy a requisite level of reliability and trustworthiness, the testimony is admitted despite the fact that it otherwise falls within the definition of excludable hearsay.
One such exception permits the admission of extrajudicial identification made prior to trial through testimony at trial of either the identifier or third parties present at the prior identification. Such identification testimony is admitted for the purpose of corroborating the witness' in-court identification.[2]*337 Thus, in Mack v. United States, D.C.Mun.App., 150 A.2d 477 (1959), the court permitted, for the purpose of corroboration, testimony by the victim of a robbery as to his identification of the accused made at the police station, in the presence of the accused, shortly after the incident. The court noted with approval Wigmore's rationale for the admission of extrajudicial prior identification testimony as corroboration: "To corroborate the witness, therefore, it is entirely proper . . . to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness' mind he recognized and declared the present accused to be the person." Id. at 479, quoting 4 J. Wigmore on Evidence § 1130 (3d ed. 1940) (emphasis in original).
While courts in some jurisdictions continued to admit prior identification testimony solely to corroborate an in-court identification, a trend developed to admit such evidence as well as for the purpose of independent evidence of identity as long as the identifier was available for cross-examination at trial. See Annot., 71 A.L.R. 2d 449 (1960). The Supreme Court in Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), took note of the trend and explained the rationale:
It has been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial. See 5 A.L.R.2d Later Case Service 1225-1228. That is the California rule. In People v. Gould, 54 Cal. 2d 621, 626, 7 Cal. Rptr. 273, 275, 354 P.2d 865, 867, the Court said:
Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial. . ., but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached . . . evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. . . . The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination. [388 U.S. at 272-73 n.3, 87 S.Ct. at 1956. (citations omitted).]
This jurisdiction clearly adopted the prior identification exception to the hearsay rule in Clemons v. United States, supra. There, the defendant urged the court to categorize as hearsay and therefore hold erroneous the admission of a pretrial identification by a witness whose in-court identification was unimpeached. Instead, the court validated the admission of the prior identification testimony, ruling that the availability of the declarant for cross-examination at trial vitiated the necessity for excluding the pretrial identification testimony on the basis of hearsay:
We think the rationale behind the exclusion of hearsay evidence has little force in the case of witnesses, such as those here involved, who are available for cross-examination. We also think that juries in criminal cases, before being called upon to decide the awesome question of guilt *338 or innocence, are entitled to know more of the circumstances which culminate in a courtroom identification an event which standing alone, often means very little to a conscientious and intelligent juror, who routinely expects the witnesses to identify the defendant in court and who may not attach great weight to such an identification in the absence of corroboration. [133 U.S.App.D.C. at 40, 408 F.2d at 1243.]
See also United States v. Miller, 381 F.2d 529 (2d Cir. 1967); Edison v. United States, 272 F.2d 684 (10th Cir. 1959); United States v. Forzano, 190 F.2d 687 (2d Cir. 1951); Bolling v. United States, 18 F.2d 863 (4th Cir. 1927); United States ex rel. Bryant v. Vincent, 373 F. Supp. 1180 (S.D.N.Y.1974).
We believe that the rationale for the admission of prior identification testimony applies with full force to the admission of prior description testimony herein challenged. The prior description given by Covington, testified to by Covington himself, Officer Howard, and Detective Love, served to corroborate the in-court identification of the appellant and was subjected to thorough cross-examination at trial for errors and inconsistencies. Moreover, the circumstances surrounding Covington's recounting of the pretrial description, which had been rendered in the midst of a chase by the victim of the robbery, with little time for reflection or opportunity to fabricate, provided sufficient indicia of trustworthiness and reliability to warrant admission. Cf. Nicholson v. United States, D.C.App., 368 A.2d 561, 564 (1977) (quoting United States v. Glenn, 154 U.S.App.D.C. 61, 64, 473 F.2d 191, 194 (1972) (circumstances surrounding spontaneous utterance by victim of violent crime justifies conclusion that remarks not made under "impetus of reflection")). We note, too, that the contemporaneous recordation of Covington's pretrial description by Officer Howard on MPD Form 251 and in the radio broadcast transcript provided additional indicia of reliability to the description testimony.[3] Thus, we hold that where a witness who has provided pretrial description evidence is available for cross-examination, such pretrial description may be admitted as independent, substantive evidence.
As his second claim of error, appellant argues that the trial court unduly restricted the scope of cross-examination of Etienne. He claims that the inference from Etienne's direct testimony was that Morris used Etienne's car and argues that he should have been permitted to refute that inference immediately through cross-examination. He contends that prejudice resulted from the trial court's limitation on cross-examination since he was then forced to call Etienne as a defense witness, thus permitting the government to impeach her testimony, which supported appellant's alibi defense, by prior inconsistent statements which she had made to the grand jury. The government counters by arguing that the scope of the direct testimony did not include any inferences of Morris' use of the car, but merely the fact that Etienne was Morris' girlfriend and the fact that she had the use of a beige 1975 Nova in August 1976. The government further claims that the requested line of cross-examination was impermissible since it would have enabled appellant to place before the jury a key element in his defense prior to the presentation of his case.
It is axiomatic that as long as the Sixth Amendment guarantee of the right to confrontation is satisfied, the extent and scope of cross-examination of a witness with respect to an appropriate subject of inquiry is committed to the sound discretion of the trial court. Alford v. United States, 282 U.S. 687, 694, 51 S. Ct. 218, 75 L. Ed. 624 (1931); Springer v. United States, D.C. App., 388 A.2d 846 (1978).
As the court observed in United States v. Bender, 218 F.2d 869 (7th Cir.), cert. denied, 349 U.S. 920, 75 S. Ct. 660, 99 L. Ed. 1253 (1955):
*339 It is the trial judge's duty to so control the presentation of evidence to the jury that it will be as well organized and understandable as possible. The traditional procedure is for the defendant to present his defense. As each witness testifies, it is important that the opposing party have an opportunity to test his truthfulness and competency. But it is also important that the regular procedure of the trial be maintained.
. . . . .
[Therefore,] [t]he trial judge's duty to see that the evidence is presented to the jury in as orderly and understandable a manner as possible requires that he have broad discretion in such matters. [218 F.2d at 873-74].
See Baker v. United States, 131 U.S.App. D.C. 7, 36, 401 F.2d 958, 987 (1968), cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970).
In exercising its discretion, the trial court should permit exploration of any matters which tend to contradict, modify, or explain the testimony given by a witness during direct examination.[4]Smith v. United States, D.C.App., 330 A.2d 519, 520 (1974); Waller v. United States, D.C.App., 389 A.2d 801 (1978).
In the instant case, the government's questions to Etienne on direct examination were directed to elicit two specific facts, i. e., that she did have use of a car which matched the complainant's description of the getaway vehicle and that appellant was her boyfriend. It is clear from the record that these facts were established in order for the jury to infer that Morris had access to the car. Thus, the requested cross-examination, which sought to "explain" both the facts and inferences elicited from Etienne on direct examination, was appropriate. See Smith v. United States, supra.
Although we find that the trial court erred in failing to permit the requested cross-examination, we take the additional step to determine whether that error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), Springer v. United States, D.C.App., 388 A.2d 846, 856 (1978). In Springer we stated:
To hold harmless such error in curtailing constitutionally-protected cross-examination, it must be clear beyond a reasonable doubt "(1) that the defendant would have been convicted without the witness' testimony, or (2) that the restricted line of inquiry would not have weakened the impact of the witness' testimony." Note, Constitutional Restraints on the Exclusion of Evidence in the Defendant's Favor: The Implications of Davis v. Alaska, 73 Mich.L.Rev. 1465, 1473 (1975) (footnote omitted). [Springer v. United States, supra, at 856.]
In this regard we note that the information which defense counsel hoped to elicit by cross-examination that Morris had no access to Etienne's car was brought out through direct examination of Etienne when called as a defense witness. We note further that the alibi testimony offered during that examination was wrapped up with her own use of the car and that the statements upon which she was impeached touched upon the alibi, not upon appellant's access to the car. More specifically, we note that the three points upon which Etienne's alibi testimony was impeached by prior inconsistencies did not touch or concern her claim that appellant was not permitted to use the car; thus, appellant's decision to present the alibi, rather than the court's ruling, led to the impeachment. We are unable to agree, therefore, that delaying appellant's ability to contradict the inference that the car was generally available to him impaired his case. We conclude that the restricted line of inquiry would not have weakened the impact of the witness' testimony and that the error was harmless beyond a reasonable doubt. Chapman v. California, supra, 386 U.S. at 24, 87 S. Ct. 705.
Affirmed.
NOTES
[1] Appellant also claims reversible error with respect to his impeachment by prior convictions, i. e., that the trial court erred in refusing to permit him either to bring out his prior convictions during direct examination or to explain the circumstances and consequences of the prior convictions. Our decision in Kitt v. United States, D.C.App., 379 A.2d 973 (1977), makes clear that the trial court in fact did err in prohibiting appellant from bringing out his convictions on direct examination. However, we deem such error harmless since we are able to say "with fair assurance . . . that the judgment was not substantially swayed by the error." Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946).
[2] Such testimony is, of course, always permissible to rehabilitate a witness whose testimony has been impeached. See, e. g., United States v. Alexander, 139 U.S.App.D.C. 163, 430 F.2d 904 (1970).
[3] The record in this case negates any contention that the descriptions were in any manner the product of suggestivity, undue or otherwise. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
[4] This jurisdiction follows the "federal" rule that the scope of direct examination delimits the reach of cross-examination, rather than the "broad" or "British" rule which permits wideranging cross-examination. See 6 J. Wigmore, supra § 1885.
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NO. 07-09-0239-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 24, 2010
_____________________________
SAMMY JUAREZ, JR.
V.
THE STATE OF TEXAS
_______________________________
FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY;
NO. 2008-112; HONORABLE MARK LUITJEN, JUDGE
________________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Sammy Juarez, Jr. appeals from his conviction of the offense of
aggravated sexual assault and the resulting sentence of twenty-seven years
confinement in the Institutional Division of the Texas Department of Criminal Justice.
Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403
(Tex.Crim.App. 2008). Agreeing with appointed counsel=s conclusion the record fails to
show any arguably meritorious issue that could support the appeal, we affirm the trial
court=s judgment.
In May 2008, appellant was indicted for the offense of aggravated sexual assault.
The indictment charged that on or about November 15, 2003, appellant Aintentionally or
knowingly cause[d] the penetration of the female sexual organ of [victim], a child
younger than 14 years of age who was not the spouse of said defendant by the
defendant=s male sexual organ.1 On appellant=s not guilty plea, the case was tried to a
jury in April 2009.
At trial, the State presented the testimony of a forensic interviewer. The
interviewer testified she talked to the victim on October 25, 2007, the day after the
victim told a school teacher she had been sexually abused by her mother=s current
boyfriend. During that interview, the victim made an outcry against appellant, stating he
had put his penis inside her several years before, when she was in the fourth grade.
The victim, 14 years old at the time of trial, testified appellant penetrated her
vagina with his penis, in her home in Lockhart, just after she turned nine years old. She
said she did not tell anyone about the assault because she was scared appellant would
come back. She finally told her mother and the forensic interviewer years later when
1
See Tex. Penal Code Ann. § 22.021 (Vernon 2003). This is a first degree
felony punishable by imprisonment for life or for any term of not more than 99 years or
less than 5 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32
(Vernon 2003).
2
she felt it was safe. The victim’s mother testified she dated appellant for two or three
months, their relationship ending in February 2004.
The victim‘s uncle, who kept her at that time while her mother worked, testified to
an occasion when appellant appeared at the child=s home and told the uncle the victim’s
mother said the uncle could go home. The victim’s counselor testified, noting it is not
uncommon for victims of child abuse to refrain from telling others about the assault and
stated the victim had difficulty trusting adults and did not view her mother as someone
who would keep her safe.
Appellant cross-examined the victim, attempting to show the physical difficulty of
her version of the sexual assault and emphasizing her assertions he held her down with
one hand while simultaneously removing her pants and performing the sexual assault.
Appellant also presented the testimony of his grandmother. She testified that in the fall
of 2003, appellant lived with her in Luling and was there every day he was not working.
During the punishment stage, the State presented evidence of appellant=s prior
criminal history. Appellant presented two witnesses, both of whom testified he posed no
danger to the community.
The jury found appellant guilty as charged in the indictment, and assessed the
sentence we have noted. Appellant timely filed notice of appeal.
3
Thereafter, appellant's appointed appellate counsel filed a motion to withdraw
and a brief in support pursuant to Anders in which he certifies that he has diligently
reviewed the record and, in his professional opinion, under the controlling authorities
and facts of this case, there is no reversible error or legitimate grounds on which a non-
frivolous appeal arguably can be predicated. The brief discusses the procedural history
of the case and appellant=s jury trial. Counsel discusses the applicable law and sets
forth the reasons he concludes the record presents no arguably meritorious appellate
issues. Counsel has certified that a copy of the Anders brief and motion to withdraw
have been served on appellant, and that counsel has advised appellant of his right to
review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645
(Tex.App.--Waco 1994, pet. ref'd). By letter, this Court also notified appellant of his
opportunity to submit a response to the Anders brief and motion to withdraw filed by his
counsel. Appellant has filed a response raising two issues.
In conformity with the standards set out by the United States Supreme Court, we
will not rule on the motion to withdraw until we have independently examined the record.
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If this Court
determines the appeal has merit, we will remand it to the trial court for appointment of
new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
In compliance with the principles enunciated in Anders, appellate counsel
discussed several potential areas for appeal. They involved (1) the trial court’s denial of
appellant’s challenge for cause against a prospective juror; (2) the trial court=s
admission of the forensic interviewer=s testimony as the designated outcry witness
pursuant to article 38.072 of the Code of Criminal Procedure; (3) the trial court=s denial
of appellant=s request to introduce details about a prior abuse complaint made by the
victim; (4) the trial court’s sustaining of the State=s objection during appellant=s closing
argument regarding lack of medical evidence to prove sexual assault; (5) the trial court’s
overruling of appellant=s objection during the State=s closing argument at punishment
suggesting appellant=s likelihood to re-offend; and (6) the legal and factual sufficiency of
the evidence to support appellant=s conviction for aggravated sexual assault. Appellant
also raised two issues in his response. The first was a complaint he did not receive a
fair trial because the jury was biased. The second was a complaint about the
sufficiency of the evidence to support his conviction.
Our review convinces us that appellate counsel conducted a complete review of
the record. We have also made an independent examination of the entire record to
determine whether there are any arguable grounds which might support the appeal. We
agree it presents no arguably meritorious grounds for review. Accordingly, we grant
counsel's motion to withdraw2 and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
2
Counsel shall, within five days after the opinion is handed down, send his
client a copy of the opinion and judgment, along with notification of the defendant=s
right to file a pro se petition for discretionary review. See Tex. R. App. P. 48.4.
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IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-202-CV
BRYAN MAXEY,
APPELLANT
vs.
ED PARSONS,
APPELLEE
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 12,957, HONORABLE CLAYTON E. EVANS, JUDGE
PER CURIAM
Appellant Bryan Maxey appeals from an order of the
district court of Burnet County denying his petition for bill of
review. We will affirm the order.
Appellant owns and operates the Channel Oaks Water System
that supplies water to residents of a subdivision located in Burnet
County. In December 1988, appellant filed the lawsuit underlying
the bill of review against appellee Ed Parsons seeking, in
pertinent part, an accounting of funds allegedly paid appellee as
trustee for appellant. Appellee counterclaimed for malicious
prosecution. After a hearing, the district court, on April 28,
1989, entered a summary judgment on the original claim and the
counterclaim in favor of appellee and against appellant.
Thereafter, on November 6, 1989, appellant filed his
original petition for bill of review seeking to set aside the
summary judgment. A bill of review is an equitable proceeding to
set aside a judgment that is no longer appealable or subject to a
motion for new trial. Ortega v. First RepublicBank Fort Worth, N.
A., 792 S.W.2d 452, 453 (Tex. 1990); Baker v. Goldsmith, 582 S.W.2d
404, 406 (Tex. 1979). The bases on which a party can obtain a bill
of review are narrow because the procedure conflicts with the
fundamental policy that judgments must become final at some point.
Thus, a petitioner must ordinarily plead and prove (1) a
meritorious defense to the cause of action alleged to support the
judgment, (2) that he was prevented from making by the fraud,
accident, or wrongful act of his opponent, (3) unmixed with any
fault or negligence of his own. Transworld Financial Services
Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987); Baker, 582 S.W.2d at
408-09; Alexander v. Hagedorn, 226 S.W.2d 996 (Tex. 1950).
In the instant cause, we first note that appellant has
attached numerous exhibits to his brief, to the supplement to the
brief, and to his response to appellee's brief. The attachment of
documents as exhibits or appendices to briefs does not make those
documents part of the record on appeal; therefore, this Court
cannot consider such documents. Perry v. Kroger Stores, Store No.
119, 741 S.W.2d 533, 534 (Tex. App. 1987, no writ); Zodiac Corp. v.
General Electric Credit Corp., 566 S.W.2d 341, 347 (Tex. Civ. App.
1978, no writ). We do, of course, consider any documents that are
properly before us as part of the record on appeal.
In his brief, supplement, and response, appellant raises
five points of error in which he asserts that he did not receive
notice of the filing of appellee's counterclaim, of the motion for
summary judgment, or of the setting of the hearing on the motion
for summary judgment; and did not receive timely notice of the
entry of judgment. As we understand the argument, appellant relies
on these contentions to satisfy the second and third elements
required to obtain a bill of review. (1) See also Petro-Chemical
Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex. 1974); Pope v.
Moore, 729 S.W.2d 125 (Tex. App. 1987, writ ref'd n.r.e.)
(petitioner who also shows meritorious defense and no fault or
negligence of own may predicate bill of review on clerk's failure
to send notice of judgment).
Appellant, represented by an attorney, filed an original
petition naming appellee as defendant in the underlying suit. At
the bill of review hearing, appellee's attorney testified that
copies of appellee's answer, counterclaim, and special exceptions
were served on appellant's attorney of record, by certified mail,
but were not sent directly to appellant. The transcript includes
a copy of appellee's motion for summary judgment which ends with a
signed order setting the hearing on the motion for April 28, 1989.
The motion also includes a certificate of service showing service
on appellant's attorney by certified mail. Appellee introduced
into evidence the transmittal letters, addressed to appellant's
attorney, for each of the documents. The letter accompanying the
motion for summary judgment states that "a hearing on this motion
. . . has been set for hearing by the Court on April 28, 1989 at
9:00 o'clock a.m."
Texas R. Civ. P. Ann. 124 (Supp. 1991) provides, in
pertinent part:
When a party asserts a counterclaim ... against
another party who has entered an appearance, the
claim may be served in any manner prescribed for
service of citation or as provided in Rule 21(a).
See generally 2 McDonald, Texas Civil Practice § 7.53--(VII) (rev.
ed. 1982 & Supp. 1990). Texas R. Civ. P. Ann. 21(a) (Supp. 1991)
provides that a document may be served by delivery to a party or
his attorney of record by certified mail to the last known address.
Pursuant to Rule 21(a), a certificate of service creates a
presumption that the requisite notice was served and, in the
absence of evidence to the contrary, has the force of a rule of
law. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987); Krchnak v.
Fulton, 759 S.W.2d 524, 528 (Tex. 1988, writ denied); Hurt v. Bays,
537 S.W.2d 139 (Tex. Civ. App. 1976, writ ref'd n.r.e.).
Appellant responds that, as to the counterclaim, the
attorney was not his attorney of record. At the hearing, however,
appellant testified that he had hired the attorney to file the
original claim and had not notified appellee, appellee's attorney,
or the trial court that the attorney did not represent him in the
defense of the counterclaim. Appellant testified further that he
did not know whether the attorney received a copy of the
counterclaim. The record shows that appellee complied with the
applicable rules in providing notice of the counterclaim, the
motion for summary judgment, and the setting for the hearing on the
motion.
The record does not show, however, whether the district
clerk of Burnet County sent notice of judgment, pursuant to Tex. R.
Civ. P. Ann. 306a(3) (Supp. 1991). We conclude, assuming that the
clerk did not send timely notice, that the failure to send notice
was not harmful. Petro-Chemical Transport, 514 S.W.2d at 246;
Pope, 729 S.W.2d at 127. Appellee introduced into evidence a
transmittal letter for interrogatories in aid of judgment,
addressed to appellant and dated June 5, 1989, and a receipt for
certified mail signed by a person at appellant's address on June
8th. Appellant testified that he did not sign the certified mail
receipt, but that the card did show his address; that he did not
recall having seen the interrogatories; and that he was not
positive that the trial court had entered a judgment until
approximately six months later when he wrote the court. Appellee
also introduced a letter, dated July 31, 1989, by which appellant's
attorney returned answers to these interrogatories on appellant's
behalf.
The evidence suggests that appellant acquired actual
knowledge of the judgment on June 8, 1989, when he received the
interrogatories in aid of judgment. Pursuant to Tex. R. Civ. P.
Ann. 306a(4) and (5), and Tex. R. App. P. Ann. 5(b)(4) and (5), he
may have proved in the trial court that he did not receive notice
until that day and thereby have extended the time within which to
file a motion for new trial or to perfect an appeal. See Pope, 729
S.W.2d at 127.
Because appellant did not allege and prove any fraud,
accident, or wrongful act on appellee's part that prevented
appellant from presenting a meritorious defense, or the absence of
fault or negligence of his own, we overrule his points of error.
The order denying petition for bill of review is affirmed.
[Before Chief Justice Carroll, Justices Aboussie and Jones]
Affirmed
Filed: March 13, 1991
[Do Not Publish]
1. Appellant does not argue that the lack of notice requires
this court to reverse the order denying petition for bill of
review. See Peralta v. Heights Medical Center, Inc., 485 U.S. 80
(1988); LDL Oil Co. v. International Power Services, Inc., 777
S.W.2d 390 (Tex. 1989).
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280 N.J. Super. 265 (1995)
655 A.2d 92
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AL-AMIN PASHA, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted January 31, 1995.
Decided March 21, 1995.
*267 Before Judges BRODY and PAUL G. LEVY.
Roberts & Fielo, attorneys for appellant (Richard M. Roberts, of counsel and on the brief).
Al-Amin Pasha, appellant, filed a pro se supplemental brief.
Clifford J. Minor, Essex County Prosecutor, attorney for respondent (Debra G. Lynch, Assistant Prosecutor, of counsel and on the letter-brief).
The opinion of the court was delivered by BRODY, P.J.A.D.
Following a jury trial, defendant was convicted of first-degree murder, a violation of N.J.S.A. 2C:11-3a(1) or -3a(2), and first-degree attempted murder, a violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1. The judge imposed concurrent prison terms: life imprisonment for the murder, thirty years to be served before parole eligibility, and eighteen years for the attempted murder, six years to be served before parole eligibility. The jury also found defendant guilty of assault and weapon crimes, which the judge dismissed through merger.
Both crimes were committed with a shotgun in a single episode. The victim of the murder was Locksley Anderson, who was having an affair with Nadirah Pasha, defendant's sister-in-law and the victim of the attempted murder. The night before these crimes were committed Anderson and defendant's brother Salim, Nadirah's husband, had engaged in a violent fight over the affair. In the course of the fight, Anderson wounded Salim in the arm with a machete.
Although one might expect that defendant's defense would have suggested that Salim had committed the crimes, instead defendant's trial attorney argued in his summation that because Anderson had been engaged in criminal activities he was the victim of an organized crime execution. Defendant's attorney had represented Salim in the early stages of the police investigation of *268 these crimes. In his pro se brief, defendant argues persuasively that he was prejudiced by what appears to be the attorney's conflicting interests. We need not explore the point, however, because we are satisfied that the erroneous admission of prejudicial evidence requires a reversal of these convictions.
The only direct evidence of defendant's guilt was the testimony of Nadirah. She described how, on the night of the shootings, defendant shot and killed Anderson in the driveway of her mother's home and then shot at her and missed. Anderson had just driven her there from a tavern. Nadirah and the young child of the marriage were living with her mother, allegedly because Salim's domestic violence forced her to leave him. The State argued that defendant committed the crimes to avenge his brother.
Defendant's alibi defense was presented through his testimony and the testimony of three witnesses.
The inadmissible evidence was the State's rebuttal testimony of Carrie Boatwright, Nadirah's mother. The gist of her testimony was that on the day after the crimes Salim telephoned her and stated that defendant had done the shooting. In his earlier testimony as a defense witness, Salim had denied on cross-examination that he had made such a telephone call. He testified that he did not know who had done the shooting. The judge erroneously ruled that Boatwright's rebuttal testimony of Salim's telephone statement was admissible because it was inconsistent with his testimony that he had never made such a call.
The matter was initiated with a leading question put to Salim by the assistant prosecutor on cross-examination:
Q Did you tell Mrs. Boatwright that you didn't think your brother would go that far to shoot and kill someone?
A No, I didn't.
Q Did you call Mrs. Boatwright on the phone the morning after the shooting or the Saturday after the shooting and tell her that you know that [defendant] followed your wife and this man from the "Rainbow Club" on the 28th and shot them?
A No, I didn't.
*269 Q You never told Mrs. Boatwright that?
A No, I didn't.
When he asked Salim the question, the assistant prosecutor knew that Boatwright was prepared to testify that he had made such a statement on the telephone because she described it in a statement she had given the police. The assistant prosecutor, however, did not ask her about it when she was a State's witness, perhaps because he believed it was inadmissible hearsay. Defendant's attorney did not object to the question, perhaps because he believed that Salim would deny making the call and because an objection might have an adverse affect on the jury.
When on rebuttal the State offered Boatwright's testimony about the telephone call, defendant's attorney objected on the ground that it was inadmissible hearsay. The judge ruled that, though hearsay, the testimony was admissible under former Evid.R. 22(b).
Before discussing why that ruling was incorrect, we quote the portion of Boatwright's testimony that was inadmissible:
Q Now with reference to the phone conversation that occurred on Saturday, August 29th at around I think you said [in previous testimony] one o'clock?
A Yes, I did.
Q That was in the afternoon?
A Yes, it was.
Q What was the nature of that phone conversation?
A Salim Pasha called me referring to his wife Nadirah and he wanted to know how she was doing. I said:
"You have a hell of a nerve calling here."
I said:
"The man is dead."
Q Who said he was dead?
A I said:
"The man is dead."
I said:
"You have a hell of a nerve calling here and your wife is shot up."
And he said:
"I didn't know Jock," his brother "would go that far."
*270 If offered to prove that defendant was the shooter, Salim's statement was clearly hearsay. The trial judge ruled that the statement was not being offered to prove its truth but rather as a prior inconsistent statement offered to impeach Salim's credibility.[1] As such, the judge ruled that it was admissible under Evid.R. 22(b) (now N.J.R.E. 613(b)) which provided:
As affecting the credibility of a witness ... (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him an opportunity to identify, explain or deny the statement.
The rule does not create an exception to the rule against hearsay. Rather, it permits a judge to exclude an otherwise admissible inconsistent out-of-court statement if the declarant, when a witness, had not been given an opportunity to deny having made the statement or to explain the apparent inconsistency.
The State now argues that the statement, though hearsay, nevertheless was admissible because it was the prior inconsistent statement of an adverse witness and thus qualified as an exception to the rule against hearsay. Evid.R. 63(1) (now N.J.R.E. 803(a)(1)). That rule provided in relevant part:
A statement is admissible if previously made by a person who is a witness at a hearing, provided it would have been admissible if made by him while testifying and the statement:
(a) Is inconsistent with his testimony at the hearing and is offered in compliance with the requirements of Rule 22(a) and (b).
A jury may consider evidence admitted under the rule as proof of the truth of the matter stated, not simply as affecting the credibility of the witness. State v. Provet, 133 N.J. Super. 432, 337 A.2d 374 (App.Div.), certif. denied, 68 N.J. 174, 343 A.2d 462 (1975).
In arguing that Salim's statement is admissible, the State overlooks the Rule 63(1) requirement that the statement is admissible only if it "would have been admissible if made by [the witness] while testifying." Unless the judge was satisfied that Salim was testifying from personal knowledge, Salim could not *271 have testified, "I didn't know [defendant] would go that far [as to kill Anderson]." Evid.R. 19 (now N.J.R.E. 602). There was no evidence here that Salim had personal knowledge that defendant shot Anderson. On the contrary, he testified that he had no such knowledge.
We realize that defendant's objection at trial did not go beyond his attorney's simple assertion that the statement was inadmissible hearsay. In our view, however, the error in admitting the statement was plain because it had the clear capacity to produce an unjust result. R. 2:10-2. Defendant's guilt turned largely on Nadirah's credibility. Without her testimony and the inadmissible evidence, there may have been sufficient suspicion that Salim was the shooter and that defendant may have been elsewhere at the time to have raised a reasonable doubt of defendant's guilt in the minds of the jurors. The importance to the State of the hearsay testimony is demonstrated in the assistant prosecutor's summation, which concluded with a prominent reference to its probative value:
Also, think about one of the last things you heard in this case. After the events of the 28th Salim Pasha was concerned about what happened to Nadirah. .. . And what did Salim say? These are important words that Salim said and words have meaning. I think these words are very significant....
What does Salim say? He says:
"I'm, sorry, Mrs. Boatwright. I didn't know [defendant] would go that far."
* * * * * * * *
[Defendant] didn't make those words, Salim made those words and without Salim in this case and without the events of August 27th [the date of the violent fight between Salim and Anderson] I submit to you the events of August 28th [the date of the crimes charged] are pretty hard to understand but they are not when you look at everything together.
Ladies and gentlemen, I do appreciate your patience in this case and I ask you to come back with verdicts of guilty against Mr. Pasha.
The judgment is reversed and the matter is remanded for retrial.
NOTES
[1] The judge did not instruct the jury that the statement had that limited effect.
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502 F.Supp. 1227 (1980)
ROCKHILL CARE CENTER, INC., a Missouri corporation, Plaintiff,
v.
Patricia Roberts HARRIS, Secretary of the Department of Health and Human Services; Eugene Hyde, Regional Administrator of the Health Care Financing Administration, Region VII; and State of Missouri, Department of Social Services, David Freeman, Director; State of Missouri, Division of Aging, Diane Felix, Acting Director; State of Missouri, Division of Family Services, James R. Moody, Director; David Freeman, Director, Department of Social Services; Diane Felix, Acting Director, Division of Aging; and James R. Moody, Director, Division of Family Services, Defendants.
No. 80-0985-CV-W-6.
United States District Court, W. D. Missouri, W. D.
December 1, 1980.
*1228 Kelly L. McClelland and R. Frederick Walters, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, Mo., for plaintiff.
Mark J. Zimmermann, Asst. U. S. Atty., Robert Van Norman, Dept. of Health & Human Services, Kansas City, Mo., D. B. Kammerer, General Counsel, Dept. of Social Services, Jefferson City, Mo., for defendants.
MEMORANDUM OPINION GRANTING PRELIMINARY INJUNCTION AGAINST TERMINATION OF MEDICAID FUNDING
SACHS, District Judge.
I. Background
This litigation was brought by Rockhill Care Center, Inc., a nursing home in Kansas City, Missouri, seeking to enjoin state and federal authorities from taking actions terminating medicaid funding. Rockhill's sixmonth medicaid provider contract with the state medicaid agency (Division of Family Services) was terminated by nonrenewal on September 30, 1980. Termination was based on a periodic pre-renewal survey of the facility in July, 1980 by the state Division of Aging, following which the state gave notice of nonrenewal and the federal agency (Health Care Financing Administration) gave concurrent notice of rejection of a pending application for medicare authorization. A requested resurvey in September, conducted with federal participation, resulted in confirmation of the nonrenewal decision. Rockhill's request for a 60-day extension of the medicaid agreement, as authorized by regulation, was rejected by the state after consultation with the federal agency; at such consultation the responsible federal official, Edward Brennan, made it clear that the federal decision was controlling, in that the state could not grant an extension during a period when a medicare application had been rejected.
Regulations provide for a 30-day continuation of funding after termination of a medicaid contract. The period is granted a provider to settle its affairs and to give medicaid patients in the facility an opportunity to make an orderly relocation. Rockhill was financially unable to take "no" for an answer. The joint state-federal decision, if carried out, would be fatal to continued operations of the facility. Medicaid accounts for approximately $140,000 of Rockhill's monthly income of $200,000; the bulk of its remaining income is medicaid-dependent in that its source is Social Security payments to medicaid patients. Even with such financing, Rockhill has been struggling to make ends meetits monthly expenses approximate $215,000. In July, 1980, there were about 150 medicaid financed residents at the facility and only about five "private" residents. While a transition to private financing is logically conceivable, maintenance of services during the interim between the mass departure of medicaid patients and the arrival of privately financed patients would require operational and financial sleight-of-hand which Rockhill denies, with credibility, that it could manage. Ownership of the facility is held by a corporation whose principal stockholders are three dentists, an attorney employed by the government, and an airline pilot.
Treating the August 28, 1980 denial of contract renewal, the simultaneous denial of the medicare application, and the September denial of a 60-day extension as a combination of potentially fatal wounds, Rockhill has been fighting back on all fronts. Appeals for federal reconsideration and state hearings have been duly filed, an effort was made through state administrative channels to stay the termination of funding (which was denied because of the controlling role of the federal medicare status), and state court proceedings were instituted to enjoin the termination of funding. State Circuit Judge Paul E. Vardeman granted a temporary restraining order immediately prior to expiration of the 30-day *1229 "grace period." There has thus been no termination of funding, which comes initially from the state, although federal officials contend they cannot give effect to the state court decision in which they did not participate; reimbursement of the state for the federal share of the funding has become the subject of a cross-claim in this case.
Recognizing that relief might not be adequate without joinder of federal defendants, or believing the state court litigation might be defective as to venue, Rockhill filed this suit November 7, 1980, against state and federal defendants, seeking continuation of medicaid payments and relief pertinent thereto. Rockhill's basic legal theory is that a pretermination evidentiary hearing before an independent body is mandated by the due process clauses of the fifth and fourteenth amendments to the Constitution. Additional claims, not yet sufficiently articulated for adequate review, apparently assert violations of statutes and regulations.
The interests of medicaid-assisted residents are central to the equitable disposition of this litigation. Rockhill has not neglected to rally appropriate support from such residents and to base its most appealing arguments on their plight. The president of the residents' council, Robert Obermeyer, has joined as a plaintiff in this litigation and testified at the hearing on the preliminary injunction. A special procedural point made by the residents is that the state gave them notice of a right to appeal, and represented that there would be a continuation of their benefits during appeal, but thereafter purported to retract the rights so given. The showing to the Court leaves the inference that substantially all of the medicaid-assisted residents, reduced to approximately 116 in number by reason of the uncertainties posed by the pending controversy, are substantially satisfied with the services they are receiving or at least do not expect better service elsewhere. Most if not all of them apparently prefer the location of Rockhill, which is convenient to their former homes and provides relatively ready access for those friends and families who visit them. Three other medicaid certified providers are within the five mile radius, but are presently closed to further medicaid residents. Hearsay testimony offered by both sides is conflicting as to the extent of availability of additional medicaid beds in Jackson County, the home county of the residents. The state contends that 68 beds are available in the outlying communities of Lee's Summit and Blue Springs, many miles from Rockhill. If these beds were filled from Rockhill, approximately 50 medicaid patients would still be homeless. The state suggests that residents might possibly be scattered through northwestern Missouri, in the limited facilities said to exist. The resulting isolation from friends and families would be a significant deprivation. Even if this were feasible, closure of Rockhill would apparently create a crisis of short supply of medicaid facilities in the 75-mile area contiguous to Kansas City. Some concern should be felt for other residents of the area who may need medicaid facilities, now or in the near future.
II. Procedural Status-Fact Evaluation
After a conference with counsel, the Court entered a temporary restraining order on November 13, 1980 (and a clarifying amendment on November 14, 1980), requiring continuation of medicaid funding. The need for such an order was indicated by the probable insufficiency of Judge Vardeman's order to reach federal matching funds and the likelihood that the state court litigation would be voluntarily dismissed. The Court is now advised that related litigation has been filed in Circuit Court in Cole County, Missouri, as a possible backup in the event this case fails to achieve Rockhill's purposes, but the state litigation is not being processed. Counsel for defendants asked for scheduling of a hearing at the earliest available time, November 24, 1980, on which date the Court orally extended the restraining order to expire December 3, 1980. The purpose of the extension was to allow time to hear evidence and make as deliberate a ruling as possible on the request for a preliminary injunction.
*1230 Evidence was heard on November 24, 25 and 26, 1980. The Court heard Rockhill witnesses as follows: Richard C. Snook, acting administrator of Rockhill; Barbara Hill, a social worker (who testified about "transfer trauma"); Robert Obermeyer, president of the residents' council; June Shelp (a state employee who testified about the hearing notices to residents and retraction thereof); Darla Montgomery, Rockhill's new director of nursing; and Dr. Alfred Gilgore, who has served for some years as house physician. State agency witnesses included two who testified concerning available medicaid beds and why the state retracted its hearing offer to residents; nurse Elizabeth Russell, a member of the survey teams; Diane Felix, Acting Director, Division of Aging, whose principal testimony related to the federal government's role; and Dr. Raymond Claxton, who had made a current visit to Rockhill to gain knowledge of its medical performance. William R. Blake, the only federal witness, outlined statutory and regulatory procedures for medicare and medicaid, but disclaimed any personal role in evaluating or supervising the evaluation of nursing home performance.
The federal defendants assert, in the alternative, that (1) federal law sets standards and provides funding for those who meet the standards, but the present controversy is wholly between the state and its provider; and (2) the federal agency is allegedly playing a central role in "attempting to impose and enforce minimum standards of care on Rockhill." As will be shown, there is reason to believe that federal authorities are indirectly exerting pressure on Rockhill, but the remoteness of the relationship seems to have inhibited meaningful and productive attempts to find solutions. It is to be hoped that once the parties conclude they must live with each other, a successful accommodation will be hammered out.
Much of the testimony has been set forth above. The parties refrained from an indepth review of the content of the survey criticisms; at least a general understanding of the ultimate issues is material, however, under some of the case law to be discussed. The July survey made a one-time criticism of social services; this was disputed and was not included in the September criticisms of Rockhill. Nursing services were listed as a deficiency in July; specifically, the team was not satisfied with catheter care, measurement of patient input and output, and documentation. Testimony tended to show some acquiescence by Rockhill in these criticisms, and efforts to correct the same. There was no evidence that the deficiencies had a material injurious effect on the patients. No special incidence of illnesses related to catheters was shown, for example; there was no claim that mortality at Rockhill was unusually high, as compared with comparable medicaid providers. Without forming conclusions binding after further evidence, the Court's impression from the Snook, Obermeyer, and Gilgore testimony, taken with the Russell testimony, is that nursing services in July were slightly but not alarmingly substandard for a medicaid-certified institution. Missouri's nursing home licensing standards have apparently been satisfied and are not in question. Nursing services appear to be Rockhill's most serious continuing problem.
Additional deficiencies in conditions were listed in the September survey. It appears to be Rockhill's contention that this survey, made after the adverse medicare decision which must be followed by the state, was influenced by the federal complication and was conducted in a hypercritical manner. Details of deficiencies and the seriousness of deficiencies were not developed by the defendants. Ms. Russell did testify that nursing services improved between July and September.
Current conditions came through as being reasonably good, considering the morale problems posed by a threatened cut-off of federal and state funds. Ms. Montgomery, director of nursing as of early November, was a rather impressive witness, not impeached during cross examination. She testified to various changes she had made during her brief service. Dr. Claxton, the state agency witness, confirmed the Court's *1231 favorable impression of Ms. Montgomery, although he noted somewhat irrationally that his opinion of her was lower after he learned that she had been employed at a facility in Joplin which apparently did not have his approval; he also tended to question her credibility about a conversation that had occurred. Dr. Claxton found there was no abuse or neglect of patients and no jeopardy to their health or safety. He questioned whether Rockhill would yet be able to achieve the necessary passing score on the eighteen conditions for medicaid certification. The only deficiency mentioned was a dirty kitchen. There was no suggestion in the evidence that diet-related illnesses were or are unusually prevalent at Rockhill, so as to imply a serious or continuing problem.
With respect to patient observations, a factor emphasized in a recent Supreme Court decision, Mr. Obermeyer, a thoroughly credible witness, testified in praise of the facility, and compared his situation favorably with his experience at Swope Ridge, a well-known local facility with medicaid certification. Dr. Gilgore, who also had experience at other facilities, testified favorably about patient care at Rockhill. Discounting the testimony for possible bias, there is little basis for the Court to consider that Rockhill is not presently suitable for medicaid patients, or that the environment there would not be superior in balance to the situation they would face if forced to leave the facility. On the contrary, it seems almost imperative that Rockhill remain available for medicaid care, based on the testimony of area needs presented to the Court.
The balance of equities in this case, as between Rockhill and the defendants, is weighted almost entirely in favor of Rockhill. Considering the public interest as an element, continuous medicaid funding appears to be essential for the patients, and the institution. If a few medicaid patients were involved, who could be readily transferred, and if Rockhill were less dependent on massive federal-state funding, a different balance might be struck. If there were life-threatening conditions at Rockhill, the balance would of course shift.
Unlike most "welfare" controversies, governmental fiscal considerations do not weigh in the balance here. The patients are all entitled to medicaid funding. Any short-term failure to fund would be an undeserved windfall to the governmental units at the expense of aged, infirm and impoverished persons and an institution which is meeting a significant public need. Insofar as the issue is simply the timing of an evidentiary hearing on Rockhill's qualifications for medicare and medicaid, it would seem that such hearings should be conducted as soon as possible, rather than after Rockhill has closed its doors, dispersed its residents and terminated its staff. There is no showing that quasi-judicial hearing officers in either the state or federal governments have higher priority duties which would justify deferring a hearing in Rockhill's case.
Perhaps the only policy consideration favoring the agencies is the possible loss of credibility of their decertification procedures. Decertification is presented to the Court as the sole means available for maintaining standards. In a situation where there was less dependence on medicaid funding, and more credible alternatives for residents, the Court might be impressed by this argument. In the present context, however, defendants are asking the Court to stand aside while they "throw the baby out with the bathwater." Judicial notice will be taken, moreover, of the considerable costs imposed on Rockhill by the present combat, and the loss of residents and funding attributable to uncertainty. Rockhill is thus feeling a strong coercive impetus for satisfying the state and federal demands, right or wrong. The Court concludes that the agencies retain an adequate whip.[1]
*1232 III. Legal Issues and Conclusions
While the outcome of this proceeding may seem foreordained by the above factual and policy considerations, federal courts cannot hold themselves out as knights-errant, always available to prevent distressing events. People v. Galamison, 342 F.2d 255, 273-4 (2d Cir. 1965, concurring opinion). Even though the balance of hardships apparently demands redress, judicial authority to enter preliminary injunctions is confined to situations where legal remedies are inadequate and a plaintiff has a legal contention of at least sufficient plausibility to make it a "fair ground for litigation." Rittmiller v. Blex Oil, Inc., 624 F.2d 857, 869 (8th Cir. 1980); Fennell v. Butler, 570 F.2d 263 (8th Cir. 1978).
The Court has orally expressed serious misgivings about the plausibility of plaintiff Rockhill's legal contentions, in light of the unanimous ruling by the judges of the Third Circuit, en banc, that a nursing home operator has no constitutional right to a pretermination hearing, when faced with medicaid termination or nonrenewal. Town Court Nursing Center, Inc. v. Beal, 586 F.2d 266 (3rd Cir. 1978). The Town Court ruling in this respect, while not appealed, was noted with apparent favor in the Supreme Court's decision earlier this year which held that medicaid patients do not have standing to challenge decertification of their nursing home, but must rely on the home to represent their interests. O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980).[2] Justice Stevens' majority opinion in O'Bannon recites with an air of approval the ruling below that "Town Court's property interests were sufficiently protected by informal pretermination procedures and by the opportunity for an administrative hearing and federal court review after benefits had been terminated." Note 6, 100 S.Ct. at 2471-2.
Closer study of Town Court and O'Bannon, together with other nursing home medicaid cases, causes the Court to conclude, however, that Rockhill retains plausible arguments based on some factual distinctions and the vulnerability of the assumptions made in the Town Court opinion. As Justice Blackmun noted in O'Bannon, bad law is a high hazard in preliminary injunction proceedings, where orders must be entered on a "limited development of the record" and insufficiently "focused presentation of legal arguments." Concurring opinion, note 10, 100 S.Ct. at 2484.[3]
Except for Town Court, the case law on pretermination hearing rights in nursing home medicaid cases has seemed to fall into two classifications: (1) where significant safety conditions were at issue, emergency terminations of benefits would be sanctioned, with full evidentiary hearings deferred (Case v. Weinberger, 523 F.2d 602 (2d Cir. 1975); Green v. Cashman, 605 F.2d 945 (6th Cir. 1979); Caton Ridge Nursing Home, Inc. v. Califano, 596 F.2d 608 (4th Cir. 1979)); (2) where less pressing health and safety conditions were in question, a pretermination evidentiary hearing before an independent hearing officer would be required (Hathaway v. Mathews, 546 F.2d 227 (7th Cir. 1976); Ross v. State of Wisconsin Department of Health and Social Services, 369 F.Supp. 570 (E.D.Wis.1973 three judge court)).[4]
Town Court announced much more limited due process requirements, based on factual assumptions made by the court and its *1233 reading of the Supreme Court's diminution of due process requirements in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Eldridge decided that "prior to the termination of Social Security disability benefit payments the recipient (need not) be afforded an opportunity for an evidentiary hearing." l.c. 323, 96 S.Ct. l.c. 897.
The rationale in Eldridge is clearly not controlling here, in that it was dependent on (1) the clogging of the administrative process which a contrary holding would entail and (2) the financial losses to the government if disability benefit recipients could retain entitlement until the completion of evidentiary adjudication of their ineligibility. In the present case, no such governmental financial losses are threatened, and it is not claimed that medicaid providers are so numerous and so frequently decertified as to impose gross administrative problems if a pretermination hearing were required.
The Court in Eldridge distinguished Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), which held that the above factors were overcome, in the case of welfare recipients, because (1) their dire need increased the harshness of pre-hearing terminations and (2) there was a greater need to hear welfare case testimony, because the issues were supposedly less "sharply focused and easily documented" than in disability cases. 424 U.S. at 340-7, 96 S.Ct. at 905-909.
It may be argued that the massive dislocation resulting from closing a nursing home more nearly resembles the Goldberg than the Eldridge deprivation. The evidence in this case, so far as the Court can now determine, also suggests that the possibility of error in the absence of a hearing is more nearly likened to Goldberg than to Eldridge.
The Court's last observation is contrary to the stated assumptions of Town Court, but is based on what this Court has heard in two days of testimony. The decision not to renew this provider agreement was not "an easily documented, sharply focused decision in which issues of credibility and veracity play little role." O'Bannon, supra, 100 S.Ct. at 2472, n. 6, quoting Town Court, supra at 277-78. The Court has reason to question that it is faced with "routine, standard, unbiased reports by health care professionals (working from) well-defined criteria..." Rockhill contends, and the Court finds some plausibility in the contention, that the survey conclusions were quite subjective in nature, that the weight placed on various deficiencies was not easily definable nor clearly reasonable, and that in at least the closing stages of the scenario impatience and annoyance may well have become factors. While Rockhill representatives may have been somewhat blameworthy in creating a contentious and biased atmosphere, slippage from strict administrative neutrality would cause serious due process problems.
The defendants' testimony concerning the condition of patient care at Rockhill came from witnesses Russell (a nurse who participated in three surveys) and Dr. Claxton (who visited the facility this month). Ms. Russell referred to "very unpleasant" exchanges during the exit interview in September. She did not consider the patients to be in any imminent danger, but did categorize the quality of health care as "not good." She reported improvements in nursing service between July and September. This puts in question the rational basis for federal agency refusal to concur in a two-month extension before taking action which would close Rockhill. Federal regulations authorize such extensions where there is written confirmation that the extension will not jeopardize the patients' health and safety and is needed to prevent irreparable harm to the facility or hardship to the recipients. 42 C.F.R. § 442.16. It seems probable that these conditions could have been satisfied. The more likely explanation for the adverse action is that federal officials had lost patience with Rockhill.
Ms. Russell's experience has apparently been exclusively outside the large metropolitan areas. She has participated in medicaid evaluations of only four nursing homes. *1234 Rockhill in Kansas City and a nursing home in St. Louis were both ruled out of compliance. While speculative at this time, an issue may be developed as to whether the survey team's evaluation of nursing homes faced up to urban problems.[5]
Dr. Claxton's testimony was not pertinent to the surveys as such, but he did increase the Court's respect for Rockhill's contention that subjective, impressionistic evaluations have (perhaps necessarily) played a role in measuring patient care. Under the Goldberg-Eldridge dichotomy, this means they should be tested in pretermination evidentiary hearings rather than accepted on paper presentations. If experience shows this to be too cumbersome, the Court's suggestion in note 1 may prove to be feasible.
One additional area of vulnerability in the procedures followed may be noted. Although O'Bannon was decided by the Supreme Court in June, it is not clear that the survey teams in July or September, or the state and federal officials even today, are giving "important, or even critical" effect to patient input in evaluating nursing homes. See 100 S.Ct. at 2474, note 15.
It is concluded that Rockhill's claim to a pretermination evidentiary hearing as a matter of constitutional law presents a "fair ground for litigation" despite the Town Court decision.[6]
IV. Federal Defendants
A preliminary injunction should issue, for the reasons set forth above. Whether it should run to the federal defendants is the remaining consideration. The testimony of Ms. Felix, the discussion showing the significance of the medicare decision by federal officials, the federal involvement in the September survey, and the statement in the federal defendants' brief which implies that federal officials are engaged in pressuring Rockhill to meet certain standards all point toward holding the federal defendants in the case.
The Court assumes that a denial of a medicare application, in the abstract, can properly be made without a prior evidentiary hearing. The same might normally be said of a decision to let a contract terminate in accordance with its own provisions. In Town Court, however, the Court recognized that the practical effect of a nonrenewal and a termination were the same. Note 1, 586 F.2d at 268. By the same reasoning, when a denial of a medicare application has a triggering effect which terminates medicaid funding, with the potentially damaging effect here in evidence, timely hearing rights mandated by due process would seem to be required in federal as well as state proceedings.
While the federal defendants assert they do not earmark funds for a particular medicaid facility, they apparently reimburse the state agencies for portions of authorized expenditures. Under state law, a failure to provide matching funds would be an excuse for termination of state aid. This may be an additional reason for retaining jurisdiction over the federal defendants, to assure uninterrupted funding.
For the foregoing reasons, a preliminary injunction should issue as to all parties defendant.[7]
*1235 It is therefore ORDERED that, subject to the further orders of the Court, the defendants provide to and for the use of plaintiff Rockhill Care Center, Inc., federal and state funds for the medicaid benefits of those residents of the Rockhill Care Center facility who have individual eligibility for medicaid assistance.
This order shall be and is effective December 1, 1980, without execution and filing by plaintiff of an injunction bond, in that the Court finds that no losses will occur to defendants by reason of this order, since plaintiff is performing and will perform services for the funds so received.
NOTES
[1] As noted orally, this case points up a need for legislation or regulations authorizing sanctions less drastic than a total termination of funding. Fines and even brief terms of imprisonment for nursing home officials who fail to maintain proper standards should doubtless be authorized as an alternative to an institutional death sentence.
[2] It seems probable that plaintiff Obermeyer has no standing under O'Bannon, or that his claim is against the state agencies.
[3] With necessary consistency the Court should concede that its opinion here may be flawed by factual and legal blunders which would be less likely in a more deliberate proceeding.
[4] In other litigation, the Department of Health, Education and Welfare (now Health and Human Services) apparently accepted the rule that pretermination hearings should occur unless "an emergency situation exists." Bracco v. Lackner, 462 F.Supp. 436, 454 (N.D.Cal. 1978). Bracco was litigation brought by nursing home patients, but there is little doubt that Hathaway was accepted by the court as a sound decision.
[5] The Court does not imply that substandard conditions should be tolerated at urban nursing homes but considers it possible that survey teams may be misled by experience in better nursing homes in a rural or small town setting.
[6] The Court stated at the hearing, and now reiterates, that Town Court's massing of judges may be deceptive, in that a majority concluded that the residents themselves had a right to a pretermination evidentiary hearing. This conclusion, now reversed in O'Bannon, may have made it easier to go along with the denial of rights to the nursing home itself.
[7] The financial and practical consequences of this order are of sufficient importance so that the Court should note what may be implicit in all such orders: the order entered is subject to modification or vacation on a showing of changed conditions; the Court will also consider any proposed equitable conditions on the granting of the relief. As a last resort, a receivership may be considered, preferably under state court supervision. Bracco v. Lackner, 462 F.Supp. 436, 455-6 (N.D.Cal.1978).
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655 A.2d 850 (1995)
Mary TWYMAN, Appellant,
v.
Naomi JOHNSON, Appellee.
Naomi JOHNSON, Cross-Appellant,
v.
Mary TWYMAN, Cross-Appellee.
Nos. 93-CV-1092, 93-CV-1441.
District of Columbia Court of Appeals.
Argued December 21, 1994.
Decided March 13, 1995.
Stephen H. Abraham, with whom J. Gordon Forester and Richard W. Luchs, Washington, *851 DC, were on the brief, for appellant/cross-appellee.
Anthony E. Grimaldi, Fairfax, VA, and Stephen Hessler, Washington, DC, for appellee/cross-appellant.
Before TERRY, FARRELL, and RUIZ, Associate Judges.
FARRELL, Associate Judge:
On this appeal from a jury verdict that, among other things, awarded the plaintiff-appellant damages for retaliation under the Rental Housing Act of 1985 (the Act), the primary issues are whether the trial judge erred in directing a verdict against plaintiff on her claim for negligence and whether an independent cause of action for retaliation may be maintained under the Act. We answer both questions in the negative, and therefore affirm in part and reverse in part the judgment of the trial court.
I.
Plaintiff Mary Twyman has been the tenant of defendant Naomi Johnson since 1974, when the Twymans moved into their apartment pursuant to an oral lease between Mr. Twyman and Mr. Johnson, both since deceased. When Mrs. Johnson took over management of the rental property in 1988, Mrs. Twyman pointed out to her several problems with the residence, including defects in the rear porch and steps leading to the ground from the porch. On November 1, 1989, Mrs. Twyman was carrying trash down the rear steps to the back alley when she fell on the second or third step and sustained injuries to her left wrist and hand. In August 1991, she filed suit against Johnson in Superior Court for negligence resulting in that injury and for breach of the implied warranty of habitability.[1] Meanwhile, in June 1991 the District of Columbia responded to a complaint by Twyman and issued a Housing Deficiency Notice to Johnson regarding the conditions at the Twyman residence. At that time, Twyman began withholding rent.
In November and December of 1991, Johnson filed two consecutive complaints for possession in Superior Court based on Twyman's non-payment of rent, each indicating, incorrectly, that statutory notice had been waived in writing. As the complaints were also defective in the identity of the person verifying them, Johnson voluntarily dismissed both, and the trial court awarded sanctions against Johnson's then-counsel, Kane, for attorney's fees. Twyman then amended her civil complaint to add claims for abuse of process and retaliation, alleging that the possessory actions had been motivated by her recourse to legal action. After serving Twyman with the proper 30-day notice to vacate, Johnson filed a third landlord and tenant complaint based on non-payment of rent. Besides answering the complaint, Twyman counterclaimed both for a rent abatement dating back three years because of the housing code violations and for damages for retaliation. The landlord and tenant action was consolidated with the civil action for trial.
At trial, Twyman's expert, Gregory Harrison, a consulting engineer, testified about the sub-standard conditions of the back steps, stating that they lacked dimensional uniformity of the risers and treads, were not slip resistant, and were not protected by a handrail, only a "guardrail." According to Harrison, the step on which Twyman said she fellthe second or third depending on how the steps were countedwas unsafe and violated the housing code. Other than Twyman, however, no one had personally witnessed the fall and could testify how it had happened.[2] Twyman, for her part, was frank in testifying that she did not know what had caused her to fall. On direct examination she recalled the approximate step from which she had fallen ("the second or third stepI don't know which one of the two"), but stated: "I was just going down the steps and I just fellthat's all I remember." On cross-examination she again stated, "I don't know what caused me to fall," and in response to *852 the question whether she had "any explanation as to why [she] fell down the steps," answered "No."[3]
At the end of Twyman's case the trial judge directed a verdict for Johnson on the negligence count, concluding that Twyman, though she had fallen from steps conceded by Johnson to be defective, had presented no evidence to establish that the condition of the steps caused her fall. The breach of warranty, abuse of process, and retaliation claims were later submitted to the jury, which awarded Twyman damages (in the form of a rent abatement) for the warranty claim and separate damages of $10,000 for retaliation, while rejecting the claim of abuse of process.
II.
Twyman appeals from the directed verdict on negligence, and also attacks evidentiary rulings which she contends weakened her presentation of the abuse of process claim to the jury. Johnson in turn challenges the trial court's ruling which allowed the retaliation claim to go to the jury both as a defense to the suit for possession and back rent and as an independent claim and counterclaim.
A.
We sustain the directed verdict on negligence. Although we view the evidence on appeal in the light most favorable to the party that prevailed in the trial court, Jackson v. Condor Management Group, Inc., 587 A.2d 222, 224 (D.C.1991), a directed verdict is proper when the jury has "no evidentiary foundation on which to predicate intelligent deliberation and reach a reliable verdict." Papanicolas v. Group Hospitalization, Inc., 434 A.2d 403, 404 (D.C.1981). We assume for the sake of argument that Johnson's failure to maintain the steps in accordance with the housing code was per se a breach of the duty she owed Twyman as her tenant. See Ross v. Hartman, 78 U.S.App.D.C. 217, 218, 139 F.2d 14, 15 (1943). Nevertheless, "[w]hether or not the negligence caused the injury is a separate question.... A simple breach of duty having no causal connection with the injury cannot produce legal responsibility." Richardson v. Gregory, 108 U.S.App.D.C. 263, 266, 281 F.2d 626, 629 (1960). A plaintiff must prove both negligence and causation. Id.; see also H.R.H. Constr. Corp. v. Conroy, 134 U.S.App.D.C. 7, 9, 411 F.2d 722, 724 (1969). In St. Paul Fire & Marine Ins. Co. v. James G. Davis Constr. Corp., 350 A.2d 751 (D.C.1976), we similarly held that even if the regulations in question (police traffic regulations) applied and had been violated, "they would establish negligence only. Appellants would still bear the burden of showing that the negligence proximately caused the damage." Id. at 754. See also Rong Yao Zhou v. Jennifer Mall Rest., 534 A.2d 1268, 1277 (D.C.1987) ("[P]laintiffs must prove that the statutory violation was the proximate cause of their injuries"); Otis Elevator Co. v. Tuerr, 616 A.2d 1254, 1259 (D.C.1992) (plaintiff must prove that "injury resulted from the risk against which the statute was designed to protect").[4]
Twyman was required to present evidence sufficient to persuade a reasonable jury by a preponderance of the evidence that "the breach of duty ha[d] a substantial and direct causal link to [her] injury." Freeman, supra note 4, 477 A.2d at 716.[5] She failed to do so. *853 Since Twyman was the only witness to the accident and she admitted that she did not know what had caused her fall, the jury could not reasonably have decided that she fell, for example, because she stepped on a slippery or uneven stair treadand not simply because she missed a step or lost her balance while not holding the guardrail (she was carrying a bag of trash at the time). In Rich v. District of Columbia, 410 A.2d 528 (D.C. 1979), upon which Twyman relies, the plaintiff did not know which depression in the sidewalk had caused her to fall, but she did testify that as she was walking "`one leg went into a depression and the other foot hit something metal.... I just flew through the air above this hole ... and I landed ... on the ground....'" Id. at 533. She was able, therefore, at least to link her accident causally to a defect in the pavement. Similarly, in Washington v. District of Columbia, 429 A.2d 1362 (D.C.1981) (en banc), the plaintiff testified that she had reached out for the handrail to steady herself, but fell because no handrail existed ("`that's when I lost my balance, when I tried to grab for a rail'"). Id. at 1368. Unlike in these cases, Twyman gave no testimony tying her fall to a defective condition of the stairs other than her bare statement that she set her foot down on the second or third step and fell.
Twyman also relies on McCoy v. Quadrangle Dev. Corp., 470 A.2d 1256 (D.C.1983), an elevator accident (fatality) case in which we reversed a grant of summary judgment and held there was a triable issue as to causation even though "no one knew with any degree of certainty how decedent got to the bottom of the elevator shaft...." Id. at 1259. But we did so partly because "to force appellants in this case to allege just how and by what means decedent's accident occurred `would do violence to the principle of res ipsa loquitur,'" id. at 1259-60 n. 7 (citation omitted), and partly because the death of the victim meant that "there [were] no eyewitnesses to [the] accident...." Id. at 1259. Neither aspect of that reasoning applies here. Elevator (and escalator) accident cases are perhaps the paradigm application of res ipsa loquitur. See, e.g., Otis Elevator Co. v. Tuerr, 616 A.2d at 1258; Otis Elevator Co. v. Henderson, 514 A.2d 784, 785-86 (D.C.1986); Bell v. Westinghouse Elec. Corp., 483 A.2d 324, 329 (D.C.1984).[6] That principle was neither pled nor presented to the jury in this case, and our holding that Twyman failed to link her fall on the steps to Johnson's negligence does no violence to it. See Tuerr, 616 A.2d at 1258 (res ipsa applies when, inter alia, "`[t]he event [is] of the kind which ordinarily does not occur in the absence of someone's negligence'" (citations omitted; emphasis added)). And, of course, Twyman testified and described her accident, but forthrightly could not explain what caused her to fall.
Twyman relies on the testimony in passing of her expert, Harrison, that a defective stair tread was "what caused the fall." But, as the trial judge recognized shortly thereafter, see note 3, supra, Harrison had no foundation on which to conclude that this defect actually caused the accident. In refusing to let Harrison render an opinion on causation and in then granting a directed verdict, the judge in effect struck the witness' earlier statement on causation.[7]
"Normally, the existence of proximate cause is a question of fact for the jury." Freeman, 477 A.2d at 716. In this case, however, the trial judge correctly discharged his duty to remove the issue from the jury *854 when a finding that defects in the stairs had substantially contributed to the accident would have rested upon surmise.
B.
We deal briefly with Twyman's contention that the trial judge abused his discretion in refusing to permit rebuttal testimony by one proposed witness (Abraham) and in restricting the rebuttal testimony of another (Ingraham). Twyman proffered the testimony, particularly of Abraham, to rebut a denial by Johnson's earlier attorney, Kane, that in a telephone conversation with Abraham (then Twyman's counsel) Kane had threatened that Johnson would raise the rent "and put Ms. Twyman out on the street." The point was important, Twyman asserts, to establish her claim of abuse of process in the form of Johnson's suits for possession filed thereafter.
The trial judge originally barred the testimony because Twyman called Kane as her own witness and then claimed surprise when he denied having made the statement, a claim of surprise the judge rejected. When Johnson later called Kane as a witness on a narrower point, Twyman used cross-examination to elicit a fresh denial of the threat, then sought again to introduce the disputed rebuttal testimony.
A party may not impeach its own witness unless it satisfies the trial court that the witness's testimony was a surprise and affirmatively damaged its case. D.C.Code § 14-102 (1989). See, e.g., Waldron v. United States, 613 A.2d 370, 372 (D.C.1992). A trial judge's ruling on whether a party may impeach its own witness will be reversed only if it "is without any rational basis""a very deferential standard of abuse of discretion." Hawkins v. United States, 606 A.2d 753, 759 (D.C.1992) (citations omitted); Crain v. Allison, 443 A.2d 558, 564 (D.C.1982) (same rule in civil case). Twyman does not contest the judge's refusal to let Abraham testify to rebut Kane's initial testimony (in Twyman's case), but argues that Johnson opened the door to the rebuttal by calling Kane in her own case. The judge rejected this argument, as do we. It was Twyman's counsel who revisited the matter of the telephone conversation by cross-examining Kane in a manner that strayed beyond the scope of the direct examination. The judge, therefore, could fairly determine that the renewed effort to rebut Kane's denial was designed to circumvent his earlier ruling that Twyman had failed to establish surprise and so could not impeach her witness. In any event, as the judge recognized, the proposed rebuttal testimony by either Abraham or Ingraham added little to the basis Twyman had already laid for her claim that Johnson's institution of suit had been an abuse of processa claim, we observe, that was weakly founded in the evidence both presented and proffered. See Bown v. Hamilton, 601 A.2d 1074, 1080 (D.C. 1992) (pointing to "our cautious approach in defining the scope" of this and related torts involving "a `perversion of the judicial process'").
C.
In the consolidated landlord and tenant action, the jury partially accepted Twyman's claim (both in her amended complaint in the civil action and in her counterclaim in the landlord and tenant suit) of substantial housing code violations, and awarded her a substantial abatement of the rent paid between April 1989 and June 1991, and due since July 1991.[8] Johnson does not challenge the jury's finding of what amounted to a partial breach of the implied warranty of habitability. (Nor does she challenge the later award of attorney's fees to Twyman under the Act.) She does contend, however, that (a) the trial judge erroneously permitted Twyman to assert as an affirmative defense to Johnson's suit for possession the alleged retaliatory nature of the lawsuit; and (b) the judge erroneously allowed Twyman to assert an independent cause of action (both in her amended civil complaint and in her counterclaim to the possessory action) for retaliation based upon D.C.Code § 45-2552 (1990) ("Retaliatory Action")a claim on which the jury awarded Twyman $10,000 in separate damages.
*855 Johnson argues strenuously that, "as a matter of law, retaliation is available as an affirmative defense only in a complaint for possession based upon a notice to quit where the landlord seeks to terminate the tenancy," in contrast to "[t]he action below, which was one for non-payment of rent in which Twyman could exercise her equity of redemption pursuant to the `Trans-Lux' Doctrine (Trans-Lux Radio City Corp. v. Service Parking Corp., 54 A.2d 144 (D.C.1947)." We express no view on this issue, however, because the affirmative defense of retaliation (as distinct from Twyman's separate claim and counterclaim alleging retaliation) had no effect upon the jury's verdict in this case. The verdict form which the jury completed makes clear that its verdict in the landlord and tenant suit rested on partial (but not total) acceptance of Twyman's claim of housing code violations and her consequent entitlement to a rent abatement. In the companion civil action, by contrast, the jury both rejected Twyman's claim of abuse of process and found in her favor on the claim of retaliation, awarding her $10,000. The propriety of the latter verdict (or not) would have no effect on the jury's finding that Johnson partly breached the warranty of habitability and that Twyman was partly justified in withholding rent. We therefore decline to consider Johnson's attack on retaliation as an affirmative defense to suits for non-payment of rent rather than for "possession based upon a notice to quit."
Presented for decision, instead, is the issue whether Twyman could properly maintain a separate cause of action for damages under the anti-retaliation statute, D.C.Code § 45-2552. The issue is purely one of statutory construction because, as this court has recognized, that cause of action did not exist at common law. In Weisman v. Middleton, 390 A.2d 996 (D.C.1978), the court held that
there is no authority in this jurisdiction establishing an independent cause of action by a tenant against a landlord based on an unsuccessful retaliatory eviction suit. The cases reflect the court's recognition of retaliatory eviction only as a valid defense to a landlord's action for possession....
Id. at 1002 (emphasis added). The cases referred to by the court were those originating with Edwards v. Habib, 130 U.S.App. D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969). In that case the federal court of appeals reviewed an eponymous decision of this court, 227 A.2d 388 (D.C.1967), in which we rejected a defense of retaliatory eviction, applying the common law rule that a landlord could "`terminate a tenancy at will for any purpose he might desire and the tenant could not question his motives or attack his reasons.'" Id. at 390 (quoting Gabriel v. Borowy, 324 Mass. 231, 85 N.E.2d 435, 438 (1949)). In reversing that decision, the federal court, motivated partly by "the spur of avoidance of constitutional questions," 130 U.S.App.D.C. at 142, 397 F.2d at 703 (McGowan, J., concurring in part), construed the District's eviction statutes as "inherent[ly]" precluding their own application "where the [trial] court's aid is invoked to effect an eviction in retaliation for reporting housing code violations." Id. at 141, 397 F.2d at 702. In a word, "evidence of retaliation" was "[]available as a defense to a possessory action brought under [these statutes]." Id. at 138, 397 F.2d at 699. See also Robinson v. Diamond Housing Corp., 150 U.S.App.D.C. 17, 20, 463 F.2d 853, 856 (1972) (Habib "held that a tenant may assert the retaliatory motivation of his landlord as a defense to an otherwise proper eviction").
The present parties agree that Habib's recognition of a defense of retaliatory eviction has been codified in statutory enactments in the District of Columbia since 1975.[9] Indeed, *856 as embodied in the Rental Housing Act of 1985, the bar against retaliation is much more than a simple defense to a housing provider's suit for possession. It is a broad prohibition against
any retaliatory action against any tenant who exercises any right conferred upon the tenant by this chapter, by any rule or order issued pursuant to this chapter, or by any other provision of law. Retaliatory action may include any action or proceeding not otherwise permitted by law which seeks to recover possession of a rental unit, action which would unlawfully increase rent, decrease services, increase the obligation of a tenant, or constitute undue or unavoidable inconvenience, violate the privacy of the tenant, harass, reduce the quality or quantity of service, any refusal to honor a lease or rental agreement or any provision of a lease or rental agreement, refusal to renew a lease or rental agreement, termination of a tenancy without cause, or any other form of threat or coercion.
D.C.Code § 45-2552(a). The section goes on to require "the trier of fact" to "presume retaliatory action" in six enumerated instances, and to "enter judgment in the tenant's favor unless the housing provider comes forward with clear and convincing evidence to rebut this presumption." Id. § 2552(b); see De Szunyogh v. William C. Smith & Co., 604 A.2d 1, 3-4 (D.C.1992). Enforcing the prohibition is an array of penalties (including civil fines) which may be imposed for conduct found to constitute retaliatory action. D.C.Code § 45-2591. Additionally, the District's Rent Administrator, either on his own initiative or upon a tenant petition claiming retaliation, id. § 45-2514(h)(1); 14 DCMR § 4303.4 (1991), may investigate the conduct (employing the statutory presumption where applicable) and, if he finds retaliation, "may order the housing provider, in addition to any other penalty prescribed by law, to cease and desist from taking such action, under such terms and conditions as the Rent Administrator may prescribe." 14 DCMR § 4303.6.
Against this remedial background, Twyman arguesand the trial judge implicitly agreedthat § 45-2552(a) goes even further and creates a cause of action for civil damages not heretofore recognized in this jurisdiction. Weisman, supra.[10] We hold that it does not. "The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction," Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979), one which requires a court to "begin with the language of the statute itself." Id. at 16, 100 S.Ct. at 245. Section 45-2552 does not expressly create an action for damages. It differs in this regard from, for example, § 45-2591(c) (part of the same Act), which allows a housing provider who has provided relocation assistance to "bring a civil action to recover the amount of relocation assistance paid to any person who was not eligible to receive the assistance."[11] Section 45-2552(b) does refer to "ent[ry of] judgment in the tenant's favor," but this is consistent with Habib's recognition of a defense of retaliatory eviction, and not inconsistent with the "finding of retaliation," 14 DCMR § 4303.6, sufficient to allow the Rent Administrator to order quasi-injunctive relief.[12]
The legislature's intent also "may appear implicitly in the language or structure of the *857 statute, or in the circumstances of its enactment." Transamerica Mortgage Advisors, 444 U.S. at 18, 100 S.Ct. at 246. See generally Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). However, "unless this [legislative] intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist." Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 94, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981); see Kelly v. Parents United for the District of Columbia Public Schools, 641 A.2d 159, 164 (D.C.1994). The Rental Housing Act confers an entitlement to damages on tenants, but it does so in highly restricted fashion. Only the Rent Administrator and Rental Housing Commission are expressly authorized to award damages, and then only for two forms of conductalbeit important onesamong the many that may constitute retaliatory action: unlawful rent increases and unlawful reduction or elimination of services. D.C.Code § 45-2591(a) (permitting treble rent refund and/or roll back). We think it improbable that the legislature, having provided thus specifically for damages, meant also to create a cause of action in court for civil damages without expressly having said so. Karahalios v. National Fed'n of Fed. Employees Local 1263, 489 U.S. 527, 533, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989) (if a statute provides one sort of remedy, "courts must be especially reluctant to provide additional remedies"); Fountain v. Kelly, 630 A.2d 684, 690 (D.C. 1993). See also Walker v. Gregory, 108 Daily Wash.L.Rptr. 65, 72 (D.C.Super.Ct. Jan. 11, 1980) (Bowers, J.) (in enacting predecessor Rental Housing Accommodations Act of 1975, the legislature "considered civil damages provisions but extended that remedy only to the recovery of treble damages by tenants who have been overcharged or who have had services reduced").
The legislative history of the Rental Housing Act contains no discussion of § 45-2552. The committee report underlying the Rental Accommodations Act of 1975 states only that "[t]he retaliatory action section is an integral part of any rent stabilization program," and that by providing for "civil remedies in addition to criminal [now civil infraction] sanctions," the Council meant to encourage "tenants to pursue their rights under the act."[13] This, of course, leaves unanswered exactly what those rights are. Twyman cites nothing in the statute or in the legislative history to support her argument, but relies instead on what this court has recognized to be the remedial purpose of the Rental Housing Act generally. See, e.g., Goodman v. District of Columbia Rental Hous. Comm'n, 573 A.2d 1293, 1299 (D.C.1990). Construing the Act to preclude a suit for damages, she says, would leave a tenant without remedy for retaliation by a landlord who refrains from bringing legal action.[14] We disagree.
Administratively, a tenant is not left uncompensated when the landlord commits either of the core prohibited acts (unlawfully raising rent or reducing services) for which the Rent Administrator may award a rent refund or roll back. § 45-2591(a). Indeed, a factor the Administrator would likely consider in determining whether to treble the refund is the presence of a retaliatory animus. See 14 DCMR § 4217.2 ("bad faith"). Furthermore, the tenant remains free, as in this case, to sue for damages for breach of the warranty of habitability based on actions (or inaction) which the landlord may have taken punitively. See note 1, supra. And still additional remedies are those already discusseddefensive use of claimed retaliation, administrative quasi-injunctive relief, and civil infraction penalties. Twyman's argument at bottom is that, having preserved or created all of these remedies, the legislature must be assumed to have intended others, a proposition contrary to the normal rule for reading statutes. See Karahalios, supra; Fountain, supra; cf. Suter v. Artist M., 503 U.S. 347, 357-59, 112 S.Ct. 1360, 1368-69, 118 L.Ed.2d 1 (1992).
We therefore reject Twyman's reliance on maxims such as "where there is a *858 right there is a remedy," see Alabama Power Co. v. Ickes, 302 U.S. 464, 479, 58 S.Ct. 300, 303, 82 L.Ed. 374 (1938), and the rule that remedial statutes should be construed generously to achieve their purposes. Goodman, 573 A.2d at 1299. Section 45-2552 is part of an elaborate remedial scheme in the District of Columbia governing landlord and tenant relations. Finding a civil cause of action for damages implicit in the statute is unnecessary to effectuate its remedial purpose. And another rule of construction makes us particularly reluctant to do so. As Weisman, supra, confirms, there is no common law authority for a cause of action for retaliation against a landlord. Habib, supra, in construing the then-statutory scheme to provide a defense of retaliatory eviction, did not change that rule. We accordingly must read § 45-2552 mindful of the canon that statutes in derogation of the common law are strictly construed, a rule creating "a rebuttable presumption," Monroe v. Foreman, 540 A.2d 736, 739 (D.C.1988), that the legislature has not intended "`any innovation upon the common law which it [has] not fairly express[ed].'" Dell v. Department of Employment Servs., 499 A.2d 102, 107 (D.C.1985) (quoting Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed. 892 (1879)). While this canon may not "`defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure,'" Monroe, 540 A.2d at 739 (quoting Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S.Ct. 440, 442, 74 L.Ed. 1082 (1930)), our analysis has found no such purpose or intent in § 45-2552 to create the remedy Twyman seeks.
We hold that Twyman had no independent cause of action for damages for Johnson's alleged retaliation, and that the judge erred in submitting that count of the amended complaint and the counterclaim to the jury. We therefore reverse the judgment awarding Twyman $10,000 for retaliation and remand with directions to dismiss that count. We affirm the judgment directing a verdict for Johnson on the count of negligence.
So ordered.
NOTES
[1] As to the latter cause of action, see George Washington Univ. v. Weintraub, 458 A.2d 43 (D.C.1983).
[2] Twyman's daughter had preceded her down the steps but had turned a corner before the fall and was unable to describe the accident.
[3] At one point, Twyman's expert, Harrison, testified without objection that a variation in the width of a tread was "what caused the fall." A short time later, however, the trial judge expressly refused to allow Harrison to render an opinion as to what had caused Twyman's fall because the testimony and exhibits, including Twyman's own testimony, provided no "factual foundation" for that opinion.
[4] It therefore is not the law in this jurisdiction that proximate causation is presumptively shown by proof of a safety violation alone when the injury "is generally of the kind intended to be avoided by the law or regulation involved." Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 302, 449 F.2d 956, 964 (1971). While proof of a safety violation may be enough to establish "foreseeability of injury," District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C.1984), it does not, without more, meet the "cause in fact" requirement of proximate causation. Id. at 716 & n. 9. On that element, no presumption can relieve the plaintiff of her burden of proof.
[5] As we stated in Freeman:
[i]n this sense, proximate cause bears a resemblance to cause in fact. This latter element of a prima facie negligence case requires a plaintiff to introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.
477 A.2d at 716 n. 9 (quoting W. PROSSER, LAW OF TORTS § 41, at 241 (4th ed. 1971)).
[6] Even there, however, we have held that "the elements of res ipsa loquitur must be established with some precision," and have sustained the grant of a directed verdict in favor of the defendant. Hailey v. Otis Elevator Co., 636 A.2d 426, 429 (D.C.1994).
[7] The parties debate whether testimony by Dr. Epps, Johnson's orthopedic expert who was called out of turn during Twyman's case (and who had examined and spoken to Twyman), can fairly be considered in evaluating the sufficiency of Twyman's proof on causation. Assuming that it can, Dr. Epps's wholly unelaborated testimony about Twyman's telling him two years after the accident that she had fallen because "[t]he steps were bad" did not fill the gap created by Twyman's inability in court to explain the cause of her accident.
[8] See Javins v. First Nat'l Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970).
[9] Codification of the prohibition on retaliatory actions originated in the Reorganization Act, enabling the D.C. Council to pass a rent stabilization program. Pub.L. No. 93-157, § 5, 87 Stat. 626 (1973) (codified at D.C.Code § 45-1624 (Supp.1974)). Upon this authority, the Council passed the Rental Accommodations Act of 1975, which contained an anti-retaliation provision. D.C.Law 1-33, § 214, 22 D.C.Reg. 2529 (codified at D.C.Code § 45-1654 (Supp. III 1976)). In 1977, the Council passed the Rental Housing Act, D.C.Law 2-54, § 502, 24 D.C.Reg. 5393 (codified at D.C.Code § 45-1699.7 (Supp.1979)), which was reenacted in 1980, D.C.Law 3-131, § 502, 28 D.C.Reg. 361 (codified at D.C.Code § 45-1562 (1981)), and again in 1985, D.C.Law 6-10, § 502, 32 D.C.Reg. 3089 (codified at D.C.Code § 45-2552 (1990)).
[10] By "heretofore" we mean prior to statutory enactment of an anti-retaliation provision in 1975. We note that, although Weisman was decided in 1978, trial in that case apparently took place before enactment of the Rental Accommodations Act of 1975. In any event, the court never adverted to the 1975 statute, and it would be unreasonable to read the decision as having impliedly resolved the statutory issue presented here.
[11] Cf. also D.C.Code § 1-2556 (1992) ("Any person claiming to be aggrieved by an unlawful discriminatory practice [under the D.C. Human Rights Act, and including coercion or retaliation, § 1-2525] shall have a cause of action in any court of competent jurisdiction for damages....").
[12] Similarly, the statutory reference to "the trier of fact" may be to the judge or jury in a suit for possession, the Rent Administrator in a complaint proceeding alleging retaliation, or even a hearing examiner considering imposition of civil sanctions for violation of provisions of the Rental Housing Act. See D.C.Code §§ 45-2591(f) (1990), 6-2713(e) (1989).
[13] HOUSING AND URBAN DEVELOPMENT COMM. OF THE DISTRICT OF COLUMBIA, RENTAL HOUSING ACCOMMODATIONS ACT OF 1975, REPORT ON BILL 1-157 at 37 (July 31, 1975).
[14] Twyman is not happily situated to make this claim since the retaliation she alleged was the filing of two unjustified suits for possession and back rent.
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655 A.2d 836 (1994)
STATE of Delaware
v.
Mark A. CHRISTIE, Defendant.
CR. A. No. IN-92-09-1546-R1.
Superior Court of Delaware, New Castle County.
Submitted May 23, 1994.[*]
Decided June 2, 1994.
Manuela DiNardo, Deputy Atty. Gen., Dept. of Justice, for the State of Del.
John S. Malik, Wilmington, for defendant Mark A. Christie.
*837 OPINION
HERLIHY, Judge.
Defendant Mark Christie [Christie] has moved for postconviction relief pursuant to Superior Court Criminal Rule 61. The basis of his claim for relief is that his counsel at the time of the entry of his guilty plea did not inform him of the risk of deportation as a consequence of the plea. Therefore, Christie contends he was denied effective assistance of counsel.
FACTS
Christie is a Jamaican native who is legally in the United States as a temporary resident alien. He was indicted in August 1992 for possession with intent to deliver cocaine, possession of cocaine within 1,000 feet of a school (both felonies) and the misdemeanor of resisting arrest.
On September 30, 1992, Christie pled guilty to possession with intent to deliver cocaine. 16 Del. C. § 4751. Pursuant to Superior Court Criminal Rule 11(e)(3), this Court sentenced Christie to a two-year suspended jail sentence to which he, his counsel and the prosecutor had agreed under Superior Court Criminal Rule 11(e)(1)(C). On May 18, 1993, Christie was sentenced on a violation of probation.
On December 8, 1993, an immigration judge sent notice to Christie's out-of-state counsel of a deportation hearing on March 16, 1994. Those proceedings have been continued to allow time for briefing on the instant motion and this decision. The record on these proceedings supplied by Christie's new in-state counsel indicates attempts in April and May 1993 to start deportation proceedings but the record is incomplete concerning why those efforts did not come to fruition. Through Delaware counsel different from counsel who represented him during his plea and sentencing, Christie filed his current motion on February 10, 1994.
The record is undisputed that Christie's original counsel was aware that Christie was not a U.S. citizen and that there was a risk of deportation arising from a conviction on a drug offense but said nothing about that risk to Christie. His original counsel has stated he believed the risk of deportation arose upon a third drug conviction. Christie's alien status was not mentioned during the plea colloquy and, therefore, was unknown to the Court and nothing was said by the Court to him regarding the risk of deportation.
CLAIMS
Christie contends he was denied effective assistance of counsel because his prior counsel failed to advise him of the risk of deportation. If he had been so informed, he now says, he would not have pled guilty but would have gone to trial on all charges. He does not contend he was innocent. The State counters by arguing that the risk of deportation is a collateral matter which imposes no burden on the Court or counsel to explain in *838 order to achieve an appropriately entered guilty plea. The issues raised are of first impression in Delaware.
DISCUSSION
As noted, the record is undisputed that no one, including the Court, mentioned during the plea colloquy Christie's non-citizen status or any deportation risk. Superior Court Criminal Rule 11(e) lists various matters which a judge accepting a guilty plea must be sure a defendant understands when entering a guilty plea. The risk of deportation is not in the list. Further, this Court is not required sua sponte to advise a defendant of the risk of deportation. Downs-Morgan v. United States, 765 F.2d 1534, 1538 (11th Cir.1985); United States v. Russell, 686 F.2d 35, 39 (D.C.Cir.1982).[1]
The remaining issue is whether Christie received ineffective assistance of counsel when his counsel knew of the risk of deportation but did not apprise Christie of that risk.
The judge who accepts a guilty plea must be satisfied that the plea is knowingly, intelligently and voluntarily entered. Brown v. State, Del.Supr., 250 A.2d 503, 505 (1969); State v. Insley, 51 Del. 196, 141 A.2d 619 (1958); Sullivan v. State, Del.Supr., 636 A.2d 931, 937 (1994). A defendant making a claim of ineffective assistance of counsel must show (1) that the lawyer's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability, but for the lawyer's unprofessional errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); Albury v. State, Del.Supr., 551 A.2d 53, 58 (1988). These standards apply to guilty plea proceedings. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Christie is required to make specific allegations of ineffectiveness. Younger v. State, Del.Supr., 580 A.2d 552, 554 (1990). Clearly, the allegation here is quite specific.
The issue raised has significantly divided the state and federal courts which have confronted it. See 65 A.L.R. 4th 719 Alien's Plea Inadequate Counsel; 90 A.L.R.Fed. 748 Alien's Plea Inadequate Counsel.
Primarily, it has been state courts which have decided that counsel have been ineffective in their representation when they have failed to advise an alien of the risk of deportation. People v. Pozo, Colo.Supr., 746 P.2d 523 (1987) (defendant's lawyer unaware of defendant's alien status did not discuss deportation risk; alien status could be a material aspect of representation and discussion whether to advise taking guilty plea, Id. at 529); Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982) (trial counsel has duty to alien client to learn of alien status and advise of deportation risks, Id. 451 A.2d at 226); People v. Soriano, 194 Cal. App.3d 1470, 240 Cal.Rptr. 328 (1987) (counsel knew of risks, discussed risks with defendant but did not seek out plea which might have prevented deportation thereby providing ineffective representation, Id. 240 Cal. Rptr. at 336); People v. Padilla, 151 Ill. App.3d 297, 104 Ill.Dec. 522, 502 N.E.2d 1182 (1986) (ineffective assistance provided when counsel knew of defendant's alien status, knew of deportation risk for drug offense and did not advise defendant of risk, Id., 104 Ill.Dec. at 526, 502 N.E.2d at 1186); Edwards v. State, Fla.App., 393 So.2d 597 (1981) petition for rev. denied, 402 So.2d 613 (1981) (failure of counsel to advise defendant of deportation risk amounts to ineffective assistance of counsel making plea not knowing and intelligent, Id. at 600).[2]
*839 The federal courts and a number of state courts have held that it is not ineffective assistance of counsel to fail to advise alien defendants of deportation risks. United States v. Sambro, 454 F.2d 918 (D.C.Cir. 1971) (counsel's mistaken impression regarding the risk of deportation stated during the plea colloquy did not compel withdrawal of plea ineffective assistance claim not raised, Id. at 922); United States v. Russell, 686 F.2d 35 (D.C.Cir.1982) (error for trial court not to consider various factors such as prejudice to defendant, protestations of innocence, etc. where Assistant U.S. Attorney offered potentially misleading comment regarding risk of deportation, but issue of ineffective assistance of counsel not discussed, Id. at 41); United States v. Santelises, 509 F.2d 703 (2nd Cir.1975) (not ineffective assistance of counsel to fail to inform defendant of deportation risks, Id. at 704); United States v. Yearwood, 863 F.2d 6 (4th Cir.1988) (failure of defense counsel to advise of deportation risk is not ineffective assistance, Id. at 8); United States v. Gavilan, 761 F.2d 226 (5th Cir.1985) (not ineffective assistance of counsel when Cuban refugee not informed of risk and lawyer did not know of risk, Id. at 228); United States v. Campbell, 778 F.2d 764 (11th Cir.1985) (not ineffective assistance of counsel where counsel unaware of deportation risk and had not advised defendant of risk, Id. at 768)[3].
The state court opinions on this issue sustain the federal courts' reasoning. Tofoya v. State, Alas.Supr., 500 P.2d 247 (1972), cert. denied 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973) (not ineffective assistance of counsel to fail to advise defendant of risk and to fail to seek plea with JRAD since deportation a collateral circumstance, Id. at 250); State v. Chung, 210 N.J.Super. 427, 510 A.2d 72 (1986) (not ineffective assistance of counsel; counsel had advised deportation issue "sticky" and defendant wanted only to change plea, Id. 510 A.2d at 77, 80); State v. Malik, 37 Wash.App. 414, 680 P.2d 770 (1984) (not ineffective assistance of counsel where counsel advised of risk but did nothing more since possibility of deportation is collateral, Id. 680 P.2d at 772); Mott v. State, Iowa Supr., 407 N.W.2d 581 (1987) (not ineffective assistance to fail to advise of risk as it is collateral, Id. at 583, specifically rejecting Pozo, 746 P.2d 523; Edwards, 393 So.2d 597; Wellington, 451 A.2d 223); State v. Santos, 136 Wis.2d 528, 401 N.W.2d 856 (1987) (not ineffective assistance to fail to advise of collateral consequence of deportation and failed to seek plea with recommendation of deportation, Id. 401 N.W.2d at 858).
There are several important factors separating this clear division of case law deciding whether failure to advise of the risk of deportation is or is not ineffective assistance of counsel. On the side of holding that failure to advise is ineffective is the draconian nature of deportation, "the equivalent of banishment", Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1947); "a savage penalty", "a life sentence of exile", Jordan v. DeGeorge, 341 U.S. 223, 243, 71 S.Ct. 703, 714, 95 L.Ed. 886 (1951).
Under the Strickland tests, the failure to advise an alien defendant of the risk of deportation is viewed as not meeting an objective standard of reasonableness. Further, since the defendants in many of these same cases said they would have elected to go to trial if they had known of the risk, these same courts have viewed the choice of pleading guilty instead as meeting the second, prejudice, test.
Those courts, however, holding that the failure of defense counsel to inform their alien clients of the risk of deportation have virtually uniformly focused on the collateral nature of deportation. The direct consequences of a plea are covered in Federal Rule 11, after which this Court's Rule 11 (effective in January 1992) was patterned. *840 Such consequences include the trial and appeal rights being waived, the potential maximum sentence, any mandatory minimum sentences, possible defenses being waived[4] and so forth.
One of the underpinnings for the concern about collateral consequences is that "[t]o hold otherwise would place the unreasonable burden on defense counsel to ascertain and advise of the collateral consequences of a guilty plea". Yearwood, 863 F.2d at 8.
This concern addresses the first Strickland test of whether counsel's performance fell below an objective reasonable standard. Necessarily, in this Court's analysis, that test is the starting point. As drastic as deportation is for an individual, this Court is convinced that to impose a constitutional standard on defense counsel to determine if their clients are aliens and adequately and correctly advise them of the risks of deportation is to take the first step on a long, slippery slope. That slope would result in unacceptable burdens on defense counsel to ferret out and adequately advise on a number of potential collateral consequences of a plea. Such a slope would spawn endless litigation over effective assistance of counsel claims.
A review of but a few collateral consequences of guilty pleas (or guilty verdicts for that matter) underscores the teflon nature of the slope:
1. A person who is declared an habitual motor vehicle offender under 21 Del. C. § 2802(1) has his or her driving privileges revoked for five years, 21 Del. C. § 2809(1). Revocation means total loss of driving privileges and the offender is not entitled to a hardship or work permit. 21 Del. C. § 2733(g). If a person is declared an habitual offender and is convicted for driving while so declared, the five-year revocation is extended for five additional years. 21 Del. C. § 2733(f). Such extension, however, is not part of the sentence but is an action by the Division of Motor Vehicles.
2. If a person is convicted of certain drug offenses, he or she has all driving privileges revoked for two or three years depending on the particular charge. 21 Del. C. § 4177H. In many cases involving the two-year revocation, the maximum possible jail sentence is one year[5] and other cases the maximum possible jail sentence is six months[6]. Under 21 Del. C. § 4177H, the act of revocation is by the Secretary of the Department of Public Safety.
3. A defendant who uses a commercial vehicle in connection with any drug felony involving manufacture, distribution or dispensing of controlled substances is disqualified for life from driving a commercial vehicle. 21 Del. C. § 2612(d).
4. A person who pleads guilty to assault in the third degree commits a crime of violence involving physical injury to another person. 11 Del. C. § 611. The offense is a misdemeanor. A person convicted of such a crime, however, is thereafter forever barred from possessing a deadly weapon. If that person does so possess a deadly weapon, he or she is then chargeable with a felony. 11 Del. C. § 1448(a)(1).[7]
5. Similarly, a person who is convicted of any drug offense, including a misdemeanor, who later possesses a deadly weapon is also chargeable with a felony. 11 Del. C. § 1448(a)(1)(3).
6. Three convictions for driving without a license subjects a person to being declared an habitual offender and driving privilege revocation of five years. 21 Del. C. §§ 2802(a) and 2809.
7. The Secretary of the Department of Public Safety is authorized to assign points for violations of the motor vehicle code. Such points can accumulate and lead, independent of violation(s) to suspension of driving *841 privileges. 21 Del. C. § 2733. They also can effect insurability and insurance rates.
The above list is not meant to be exhaustive. Clearly, most, if not all, of the examples of collateral circumstances cited are not as drastic as deportation. However, to a person whose livelihood depends on a job for which he or she needs a vehicle to get to that job or that job is driving, loss of all driving privileges for five years or life can have a devastating effect. Should an attorney representing an individual charged with a motor vehicle offense be constitutionally required to determine the prior driving record to determine eligibility for habitual offender treatment?[8]
Should this Court allow the withdrawal of pleas under Strickland's first test because defense counsel did not advise their clients of these or other collateral circumstances? While it may be advisable for counsel to discuss these other collateral consequences with their clients, as long as guilty pleas play such an integral part of the criminal justice process, this Court finds that it is unreasonable to impose on defense counsel such a constitutional standard.
In sum, this Court finds that Christie's original counsel's failure to advise him of the risk of deportation does not rise to the level of a violation of Strickland's first test that counsel's representation fell below an objective standard of reasonableness.[9]
The Court finds also that Christie fails Strickland's second test of prejudice. Facially, he arguably meets it on the allegation that he would not have plead guilty but, instead, would have gone to trial. However, he does not say he is innocent or would have presented any defenses. The Court has viewed the entire plea colloquy with the court reporter and there was nothing hesitant about the guilty plea.
One of the factors relating to the existence of prejudice which can or should be considered is whether a defendant in Christie's position asserts his innocence. Russell, 686 F.2d at 39; Sambro, 454 F.2d at 922, Chung, 510 A.2d at 77. At this time, this Court need not decide whether, if a colorable claim of innocence were made, a defendant in Christie's position might be entitled to an evidentiary hearing on that issue. See Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir.1985).
In Russell, 686 F.2d at 39, the Court of Appeals indicated several considerations for the district courts to consider in circumstances similar to these. In addition to the presence or absence of an assertion of innocence, the court mentioned possible prejudice to the prosecution's case. In this case, the State has not alleged any prejudice. Other than that the offense to which Christie pled guilty occurred on August 14, 1992 and his motion was filed a year and one-half later, there is no additional indicia of prosecution prejudice.
This Court has considered whether to require the State to proffer a showing of prejudice. However, in the absence of an assertion of innocence or other defense, it declines to do so. Another reason for not requiring a State proffer is the fundamental fact that deportation is a collateral consequence.
Accordingly, Christie has failed to meet Strickland's second test of prejudice. Therefore, having failed to meet either test of ineffective assistance of counsel under Strickland, Christie's motion must be denied.
CONCLUSION
For the reasons stated herein, defendant Mark Christie's motion for postconviction relief is DENIED.
NOTES
[*] This is the date the Court received notice from defendant's counsel that he would not be submitting a reply memorandum.
[1] On its own, however, this Court will soon be amending its English and Spanish language guilty plea forms to add: "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
[2] The Soriano and Pozo courts found ineffective assistance of counsel in part because counsel had not sought out a plea with a judicial recommendation against deportation (JRAD). Soriano, 240 Cal.Rptr. at 336; Pozo, 746 P.2d at 528-29. At one time, such a step could be undertaken. 8 U.S.C.A. § 1251(b):
The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply... (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, ...
However, on November 29, 1990 the JRAD provision was repealed and is no longer an option. See People v. Gabot, 176 A.D.2d 894, 575 N.Y.S.2d 358 (1991). While there is no claim in this case of ineffective assistance for failure to seek JRAD, the failure of counsel in Soriano and Pozo, to seek it was a significant basis for determining ineffective assistance.
[3] The Campbell court specifically chose not to follow Edwards, 393 So.2d 597.
[4] This consequence is generally covered in the waiver of the right to testify and/or presented evidence or witnesses.
[5] 16 Del. C. § 4753.
[6] 16 Del. C. § 4754.
[7] The definition of deadly weapon, 11 Del. C. § 222(5), has been refined to create a use test ("which is used, attempted to be used, to cause death or serious physical injury") which ameliorates to a degree the impact of this collateral consequence from the former definition of deadly weapon which had no use test.
[8] This is a separate question from the need to determine any prior record to determine the applicable sentence, as the penalty increases for subsequent defenses. But this is a direct consequence.
[9] Saying this, however, this Court endorses the admonition in Campbell, that defense counsel be sensitive to the harshness of deportation and undertake steps to properly appraise clients of the risk or seek help from immigration law practitioners. Campbell, 778 F.2d at 769.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1512358/
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502 F.Supp. 707 (1980)
CALPRO COMPANY, Plaintiff,
v.
CONSOLIDATED ENGINEERING COMPANY OF GEORGIA, INC.; Fabtex Systems, Inc.; Textile Welding, Inc.; Ray Paul Enterprises, Inc.; and Superior Trucking Company, Inc., Defendants.
Civ. A. No. C80-1098A.
United States District Court, N. D. Georgia, Atlanta Division.
December 16, 1980.
*708 Allen S. C. Willingham, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for plaintiff.
C. James Jessee, Jr. and Jeffrey L. Sakas, Jessee, Ritchie & Duncan, Atlanta, Ga., for Consolidated Engineering Co. of Ga., Inc.
James T. Fordham and John P. Neal, Dalton, Ga., for defendants Fabtex Systems, Inc. and Textile Welding, Inc.
Glen Frick, Lokey & Bowden, Atlanta, Ga., for defendant Ray Paul Enterprises, Inc.
Paul M. Talmadge, Jr., and Stephen E. O'Day, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, Ga., for defendant Superior Trucking Co., Inc.
ORDER
SHOOB, District Judge.
This case, which was removed from the Superior Court of Fulton County, has been submitted to this Court for its consideration of three motions: (1) defendant Ray Paul Enterprises, Inc.'s motion to strike portions of the complaint, (2) a motion for substitution of counsel, and (3) defendant Superior Trucking Company, Inc.'s motion for summary judgment. The first motion was apparently filed in state court. While some of the briefs for and against Ray Paul Enterprises' motion are in the file before this Court, the motion itself and the brief in support have not been made part of the record.[1] Thus, the first motion is not properly before this Court. Defendant Ray Paul and all other parties to this removed action should see that the record here in federal court is complete. This Court will rule on defendant Ray Paul Enterprises, Inc.'s motion to strike when it has been properly presented.
Counsel of record for defendant Consolidated Engineering Company of Georgia, Inc., Mr. John L. Respess, Jr. has moved the Court for leave to withdraw and to be replaced as counsel of record by Mr. C. James Jessee, Jr. and Mr. Jeffrey L. Sakas of the firm of Jessee, Ritchie & Duncan, P. C. There is no opposition to the motion and accordingly, it is GRANTED. Local Court Rule 91.2.
*709 Plaintiff Calpro Company was consignee of an annealing oven shipped by defendant Superior Trucking Company, Inc. ("Superior"), an interstate carrier. Defendant Textile Industrial Welding, Inc., was the shipper of the oven. Defendant Superior has moved for summary judgment in its favor on the ground that the failure of plaintiff Calpro, cross-claimant Textile Industrial Welding, Inc., or cross-claimant Ray Paul Enterprises, Inc. to file a written claim within nine months as required by the Bill of Lading and Tariff applicable to the shipment, and as required by 49 C.F.R. § 1005.2, precludes recovery from Superior.
Superior has supported its motion with true and correct copies of the Bill of Lading between Superior and the shipper, and the Tariff applicable to the shipment, and with affidavits of Superior personnel that no written claim for damages was made on Superior from the date of the shipment (October, 1978) until the filing of this lawsuit (filed May 23, 1980, in the Superior Court of Fulton County).
The Bill of Lading between Superior and the shipper incorporates by its terms the Uniform Straight Bill of Lading, Tariff 200-0, MF-ICC 168. The Uniform Straight Bill of Lading contains the following provision:
BILLS OF LADING-STRAIGHT BILL, CONTRACT TERMS AND CONDITIONS
All shipments are subject to the following contract terms and conditions as provided in Item 360:
Contract Terms and Conditions:
Section 2:
(b) As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, or carrier in possession of the property when the loss, damage, injury or delay occurred, within nine months after a delivery of property (or, in the case of export traffic, within nine months after delivery at port of export), or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed, and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.
In addition, pursuant to the Interstate Commerce Act, in particular 49 U.S.C. § 11707(e), previously 49 U.S.C. § 20, par. (11), the Interstate Commerce Commission has issued regulations which "govern the processing of claims for loss, damage, injury, or delay to property transported or accepted for transportation, in interstate or foreign commerce," by each carrier subject to the Interstate Commerce Act. In pertinent part, these regulations provide as follows.
(a) Claims in writing required. A claim for loss or damage to baggage or for loss, damage, injury or delay to cargo, shall not be voluntarily paid by a carrier unless filed in writing, as provided in paragraph (b) of this section, with the receiving or delivering carrier, or carrier issuing the bill of lading, receipt, ticket, or baggage check, or carrier on whose line the alleged loss, damage, injury, or delay occurred, within the specified time limits applicable thereto and as otherwise may be required by law, the terms of the bill of lading or other contract of carriage, and all tariff provisions applicable thereto.
(b) Minimum filing requirements. A communication in writing from a claimant, filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage or transportation and: (1) Containing facts sufficient to identify the baggage or shipment (or shipments) of property involved, (2) asserting liability for alleged loss, damage, injury, or delay, and (3) making claim for *710 the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage.
(c) Documents not constituting claims. Bad order reports, appraisal reports of damage, notations of shortage or damage, or both, on freight bills, delivery receipts, or other documents, or inspection reports issued by carriers or their inspection agencies, whether the extent of loss or damage is indicated in dollars and cents or otherwise, shall, standing alone, not be considered by carriers as sufficient to comply with the minimum claim filing requirements specified in paragraph (b) of this section.
49 C.F.R. § 1005.2, Filing of claims, issued March 1, 1972, 37 F.R. 4258. Superior argues that the failure of plaintiff Calpro and cross-claimant shipper to file any written claim for more than 18 months after delivery precludes any recovery.
Cross-claimant/shipper Textile Industrial Welding, Inc., and cross-claimant Ray Paul Enterprises, Inc., have failed to respond to Superior's motion for summary judgment. See Local Court Rule 91.2. However, plaintiff Calpro does oppose the motion. While not contesting the material facts as set out by Superior, Calpro has provided the Court with a statement of additional material facts and disputed material facts, which, Calpro contends, preclude summary judgment. See Local Court Rule 91.72. These facts contended by Calpro are as follows:
1.
When the oven was delivered to Calpro in California, it was noted to be in a damaged condition. [Affidavit of Amaral, ¶ 3]. At the time of delivery, an employee of Calpro indicated in writing above his signature on the shipping receipt that the oven was "Received Damaged". [Affidavit of Amaral, ¶ 4; Affidavit of Willingham, Exhibit "A"]. Superior's employee who delivered the oven to Calpro received this written notice of Calpro's complaint and other oral communications of Calpro's complaint at that time.
2.
During the period of time following shipment, Mr. Joe Amaral, who was a purchasing agent for Calpro, had a number of telephone conversations with employees of Superior concerning Calpro's claim that Superior was responsible for the defective condition of the annealing oven on its arrival in California. [Affidavit of Amaral, ¶ 5].
3.
Mr. Amaral was informed by one or more employees of Superior that there would be some delay involved in Superior's handling of the claim because Superior did not have a local representative in California. [Affidavit of Amaral, ¶ 6].
4.
In the course of his conversations with employees of Superior, Mr. Amaral was also informed that a determination of Calpro's claim would be delayed until a representative of Consolidated Engineering Company of Georgia, Inc. or some other person could examine the oven to determine the extent of the damage attributable to Superior. [Affidavit of Amaral, ¶ 7].
5.
Finally, in the course of Mr. Amaral's discussions with employees of Superior, those employees were fully informed of the nature of Calpro's claim, and they indicated a willingness to investigate the claim and to satisfy the claim if Superior was found to be at fault. [Affidavit of Amaral, ¶ 8].
6.
Within a period of a little more than a month after delivery of the oven, Superior had written evidence in its files indicating the nature of the goods damaged, the nature of the damage and the cause of the damage. [Affidavit of Willingham, Exhibits "A" and "B"].
*711 7.
This written evidence indicates that while the oven was being shipped, the braces broke and the tarps covering the oven were torn by the wind. [Affidavit of Willingham, Exhibit "B"]. The written evidence indicates that the claims office of Superior was to be informed. [Affidavit of Willingham, Exhibit "B"].
8.
The driver for Superior indicated in writing that the insulation in the oven was damaged and that some of it had come out of the oven. [Affidavit of Willingham, Exhibit "B"]. The driver inspected the oven and pictures were taken of it. [Affidavit of Willingham, Exhibit "B"]. It was noted that "22 blocks of insulation went bad" and that "moisture got to them". [Affidavit of Willingham, Exhibit "B"].
Movant Superior has now attached to its supplemental brief in support of its motion the Affidavit of Thomas F. Ryan, with an exhibit. The affidavit and exhibit indicate the existence of another undisputed material fact: that on November 21, 1978, within one month of the October 24, 1978 delivery date of the oven, defendant Superior's insurance manager and affiant, Mr. Ryan, sent plaintiff Calpro a letter, the full text of which follows.
Enclosed is a cargo claim form calling for completion along with all necessary documents. Upon receipt of the completed form we will conduct our necessary investigation and contact you further.
When writing or calling please refer to the above file number.
Attached to the letter was a "Standard Form for Presentation of Loss and Damage Claim." Calpro never filed the form supplied by Superior or any other written claim. Affidavit of Thomas F. Ryan, November 10, 1980, ¶ 4.
Plaintiff's arguments in opposition to the motion for summary judgment, based on the foregoing facts, are (1) that the notation, "Received Damaged," written on the shipping receipt by an employee of Calpro above his signature, along with various oral communications concerning the damage to the oven (which resulted in the carrier's actual knowledge of the claim), amount to compliance with the written claim requirement of the bill of lading and tariff, as construed in the cases, the ICC regulations being inapplicable in this case; and (2) whether or not the claim was sufficient, defendant Superior is estopped from asserting this defense, or had "waived" its right to receive a written claim.
For the reasons set forth below, the Court concludes: (1) that the I.C.C. regulations were applicable to this transaction; (2) that defendant Superior never received a proper claim in writing as required by the tariff and the regulations; and (3) that neither estoppel nor waiver principles apply. Accordingly, defendant Superior's motion for summary judgment is GRANTED.[2]
*712 In plaintiff Calpro's supplemental memorandum in opposition to Superior's motion for summary judgment, Calpro argues that the Interstate Commerce Commission's Regulations concerning claims against interstate carriers, 49 C.F.R. § 1005, are not even applicable to cases where responsibility for the damage or loss is contested by the carrier. Wisconsin Packing Company v. Indiana Refrigerator Lines, Inc., 618 F.2d 441, 445-46 (7th Cir. 1980) (en banc, vacating 604 F.2d 1022 (7th Cir. 1980) (panel opinion)), cert. den. ___ U.S. ___, 101 S.Ct. 112, 66 L.Ed.2d 44 (October 7, 1980).[3] There is some merit to this position.
The heading for these I.C.C. regulations is "Part 1005-Principles and Practices for the Investigation and Voluntary Disposition of Loss and Damage Claims and Processing Salvage." The use of the word `voluntary' in the heading, and in § 1005.2(a) ("A claim for loss or damage ... shall not be voluntarily paid by a carrier unless filed in writing....") provides the basis for reasonable inference that the regulations were promulgated to "make claim settlement more expeditious by providing procedures for the voluntary disposition of claims by carriers. ... Instead of attempting to regulate the process of judicial determination of claims, the I.C.C. indicated that its intention was to encourage parties to follow formal procedures that would make it unnecessary for them to face the unattractive prospect of time consuming, expensive and potentially unavailing litigation in the district courts." Wisconsin Packing, supra, 618 F.2d at 445. Thus the Seventh Circuit understood the regulations to be advisory in nature, formal guidelines for settlement procedures, should both parties wish to settle.[4] The I.C.C. regulations, in the view of the Seventh Circuit, do not even apply to contested or disputed claims.
But every other federal district or appellate court to consider the question of the I.C.C. regulations' scope has reached the opposite conclusion.[5] The following cases stand for the proposition that the I.C.C. regulations at 49 C.F.R. § 1005 apply to *713 litigated claims for loss or damage against interstate carriers. Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d Cir. 1980), reversing on other grounds (i.e., not as to the applicability of the ICC regulations) Pathway Bellows, Inc. v. Blanchette, 78 Civ. 2100 (LBS) (S.D.N.Y., June 14, 1979) (slip opinion); Perini-North River Associates v. Chesapeake and Ohio Railway Company, 562 F.2d 269, 271 n.2, 274 (3d Cir. 1977); Foster Wheeler Energy Corporation v. Daily Express, Inc., 485 F.Supp. 268, 271-72 (M.D.Pa.1980); and Venetian Terrazzo Company v. Chicago, Rock Island & Pacific Railroad Company, 453 F.Supp. 1021, 1024 (E.D.Mo.1978). To the same effect were Henry Pratt Company v. Stor Dor Freight Systems, Inc., 416 F.Supp. 714, 715 (N.D.Ill. 1975), and the district court and panel opinion (at 604 F.2d 1022) in Wisconsin Packing, supra, before the en banc decision of the Seventh Circuit in Wisconsin Packing was released, 618 F.2d 441. The reasoning behind the conclusion that the I.C.C. regulations are applicable to a disputed claim is best set forth in the Second Circuit's Pathway Bellows opinion, supra.
First, despite the use of the word `voluntary' in two other instances, the section of the regulations delineating the scope of application contains no such limiting language.
§ 1005.1 Applicability of regulations.
The regulations set forth in this part shall govern the processing of claims for loss, damage, injury, or delay to property transported or accepted for transportation, in interstate or foreign commerce, by each railroad, express company, motor carrier, water carrier, and freight forwarder (hereinafter called carrier), subject to the Interstate Commerce Act; ....
The Second Circuit found support for this statement of the applicability of the regulations in the legislative history.
Moreover, the I.C.C. quite clearly stated that
We are persuaded by the record in this proceeding that our regulations should embrace the full range of matters relating to the filing of claims, including a prescription of minimum filing requirements and a consideration of documents that do not constitute claims, and claims for uncertain amounts.... Thus, the rules set forth in sections 1005.1 and 1005.2 ... first establish their overall applicability and then set out the manner and form in which loss and damage claims must be filed by claimants in order to accomplish the improvements shown to be required in the public interest in this area.
Ex Parte No. 263, [340 I.C.C. 515, 555-56 (1972)].
Pathway Bellows, supra, at n.7. The court also noted the Wisconsin Packing court's concern with the I.C.C.'s authority to promulgate the regulations but distinguished between "prescribing the form a properly constituted claim must take and that of determining the substantive merits of that claim." While the I.C.C. lacks the latter, it possesses the former.
It appears, therefore, that the ICC intended to promulgate regulations that would apply generally to all claims and we can perceive no lack of statutory authority vested in the Commission which would frustrate it from fulfilling its intention. See discussion of statutory and case law basis for the Commission's authority to promulgate these regulations in Ex Parte No. 263, supra, 340 I.C.C. at 542-46.
Id. This Court concurs in that view.
Second, the dual scheme that results from the Seventh Circuit's view of the regulations furthers neither of the purposes of the written claim requirement.[6] The regulations set up a scheme which is triggered by the filing, within the time provided by the bill of lading and tariff,[7] of a written claim *714 (1) identifying the property involved; (2) asserting liability against the carrier; and (3) making a claim for a specific or determinable amount. The filing of this claim triggers a number of obligations on the part of the carrier; the language used in the regulations is mandatory. The carrier must, inter alia, acknowledge receipt of the claim in writing within thirty days; create a special file for each claim, with its own claim number; promptly investigate the claim; and "pay, decline or make a firm compromise settlement offer within 120 days after receipt of the claim...." The Wisconsin Packing case suggests that the carrier has no obligations under these regulations if the carrier declines to pay the claim as soon as it is presented. Alternatively, a shipper or consignee can avoid this process (though the burden on the claimant under 49 C.F.R. § 1005 is slight) by presenting the sort of incomplete claim of which the cases under the Carmack Amendment are made-a claim which does not contain the three simple items above but which, under the cases, meets the requirement. The point of such a voluntary settlement procedure, (no sanctions attaching to non-use of the procedure) is dubious. It appears to provide neither carrier[8] nor claimant with any incentive not already present to settle a claim.
Third, these regulations, insofar as they are contested by Calpro here (49 C.F.R. § 1005.2(a), (b), and (c)), were not intended by the I.C.C. to
afford carriers an unfair opportunity to escape liability. The minimum filing requirements appear to call for no more information than one ordinarily would expect a claim for damages to contain, and compliance with these requirements is neither onerous nor unreasonable. To the extent that carriers may escape liability, such `windfalls' may be properly traced, not to the existence of the regulations, but to shippers' unexcused failures to comply with a reasonable condition contained in bills of lading.
. . . . .
... Having required a carrier to take certain actions once a claim is received, we think it is neither inappropriate nor beyond the authority of the ICC at the same time to provide a carrier with some guidance as to what constitutes a claim, so that a carrier may know one when it sees one.
Pathway Bellows, supra. This Court concludes that the regulations provide the appropriate standard for assessing the sufficiency of Calpro's written claim. "Received Damaged" falls far short of the mark set by 49 C.F.R. § 1005.2(b). In fact, it falls within 49 C.F.R. § 1005.2(c), Documents not constituting claims.
Even assuming that waiver is an appropriate argument for a claimant to raise once a carrier has shown that claimant failed to file a written claim within the time required, a proposition in some doubt,[9] it is undisputed in this case that within a month of the arrival of the damaged oven, the carrier Superior solicited a written claim from Calpro. On the other hand, Calpro has come forward with no evidence, by affidavit or otherwise, that Superior ever waived its right under the contract to receive a written claim within nine months.
Nor has Calpro come forward with any evidence supporting its theory that Superior *715 by its actions is estopped from raising the written claim requirement defense. The facts adduced by Calpro in the affidavits and in its statement of material facts and disputed material facts tend to show (1) that certain of Superior's employees had actual knowledge of the damage to the oven and (2) that there might be some delay in investigating and processing any claim filed, because Superior had no representatives in California, where the damaged oven was. Neither of these facts is inconsistent with Superior's legal theories in this motion for summary judgment; again, Superior's request that Calpro file a written claim on a form provided by Superior undercuts Calpro's estoppel argument.
Finally, Calpro also requests that the Court defer ruling on the motion for summary judgment until Calpro can more fully discover facts supporting its estoppel theory. But behavior of Superior on which Calpro was entitled to rely and did rely[10] would necessarily be within the knowledge of Calpro's own employees and agents. A party opposing a properly supported motion for summary judgment who lacks countervailing evidence and cannot show that such evidence will be forthcoming is not entitled to denial of the motion "on the basis of a hope that such evidence will develop at the trial." 6 Moore's Federal Practice ¶ 56.15[3], page 56-481.
Accordingly, defendant Superior Trucking Company's motion for summary judgment is GRANTED. The Court is aware that the result it reaches is severe, in light of the evidence that the oven was damaged in transit. But this is the result the law requires, and to the extent that Superior is relieved from liability, plaintiff Calpro and shipper Textile Industrial Welding are responsible for not properly following up the claim in writing as required by the tariff, the bill of lading, and the I.C.C. regulations.
CONCLUSION
Because defendant Ray Paul Enterprises, Inc.'s motion to strike is not a part of the record before this Court, no ruling can be made at this time. The motion for substitution of counsel is GRANTED. The name of Mr. John L. Respess, Jr. shall be STRICKEN from the record; let the names of Mr. C. James Jessee, Jr. and Mr. Jeffrey L. Sakas, and the firm of Jessee, Ritchie & Duncan, P. C. be ENTERED as counsel of record for defendant Consolidated Engineering Company of Georgia, Inc. New counsel should note that Consolidated Engineering Company's responsive pleadings are not part of the record in this Court. Defendant Superior Trucking Company, Inc.'s motion for summary judgment is GRANTED.
IT IS SO ORDERED.
NOTES
[1] The only documents from state court which were attached to the petition for removal, and thus made a part of the record in federal court, were the Notice of Filing of Petition and Bond for Removal, the Removal Bond, the summons on Superior, and the original complaint and its four exhibits.
[2] The Court notes that even had it determined that the regulations were inapplicable to this transaction, the same result would in all likelihood be required. First, there are few cases in which so thin a writing has been held to satisfy a written claim requirement, absent the application of waiver or estoppel principles. The writing in the instant case-"Received Damaged"-is not a claim at all but a statement concerning the condition of the oven. See Conagra, Inc. v. Burlington Northern, Inc., 438 F.Supp. 1266, 1268 (D.Neb.1977) (a written claim must "inform the carrier of the shipper's claim for damages. Notice of the existence of the loss is not sufficient. The aggrieved party must manifest his intent to hold the carrier accountable."). Broad language in the case of Thompson v. James G. McCarrick Company, 205 F.2d 897 (5th Cir. 1953), to the effect that the written claim requirement may be satisfied by the claimant's supplying "sufficient information upon which a prompt and complete investigation can be based," id. at 901, must be read in light of the Fifth Circuit's assumption that the written information shall include a statement of the claimant's intent to hold the carrier liable. See Atlantic Coast Line Railroad Company v. Pioneer Products, Inc., 256 F.2d 431, 433, n. 3 (5th Cir. 1958) ("As our opinions in East Texas Motor Freight Lines v. United States, 239 F.2d 417 (5th Cir. 1956) and Thompson v. James G. McCarrick Co., supra, as well as others reflect, the usual question [in determining whether the written claim requirement of an American bill of lading has been met] is whether the writing sufficiently makes a claim in the sense of asserting that, because of the physical damages otherwise reported or known, the shipper intends to hold the carrier liable for, and thereby seeks recovery of, the money value of the loss.").
Second, Superior never acknowledged liability, and mere knowledge of damage acquired by the carrier "does not, in our opinion, have the effect of releasing [claimant] from the obligation of complying with the provisions as to notice set forth in the contract of carriage." East Texas Motor Freight Lines, supra, 239 F.2d at 418. Moreover, the letter sent to Calpro by Mr. Ryan on November 21, 1978 would effectively rebut any argument that estoppel or waiver applied in this case.
[3] "Because the writ is discretionary, a denial of certiorari ordinarily `carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review.'" L. Tribe, American Constitutional Law, page 35, n.8 (1978), citing Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 at 919, 70 S.Ct. 252 at 255, 94 L.Ed. 562 (1950).
[4] It should be noted that the Wisconsin Packing court devoted significantly more space and analysis to alternate holdings. Wisconsin Packing, supra, 618 F.2d at 445 (ICC regulations inapplicable); and at 445-48.
[5] For reasons unknown to this Court, a substantial number of cases decided since the regulations were issued in 1972 have decided the question of whether the written claim requirement was met under the case law that has developed, without any mention of the I.C.C. regulations and their applicability to the claim at issue. See Atchison, Topeka and Santa Fe Railway Company v. Littleton Leasing and Investment Company, Inc., 582 F.2d 1237 (10th Cir. 1978); Westhemeco Ltd. v. New Hampshire Insurance Company, 484 F.Supp. 1158 (S.D.N.Y.1980); Conagra, Inc. v. Burlington Northern, Inc., 438 F.Supp. 1266 (D.Neb.1977); MGD Graphic Systems Americas Company v. Acme Fast Freight, Inc., 437 F.Supp. 10 (N.D. Ill.1977); Stearns-Roger Corporation v. Norfolk and Western Railway Company, 356 F.Supp. 1238 (N.D.Ill.1973). See also H&M Motor Lines, Inc. v. Georgia Best Sales Company, 149 Ga.App. 231, 253 S.E.2d 841 (1979). A recent reported case from this circuit dealing with the question, Miller v. Aaacon Auto Transport, Inc., 447 F.Supp. 1201 (S.D.Fla.1978), aff'd without opinion, 614 F.2d 292 (5th Cir. 1980), cert. den. ___ U.S. ___, 101 S.Ct. 315, 66 L.Ed.2d 145, likewise fails to address the issue of the applicability of the regulations. Thus this motion by Superior presents a question of first impression in the circuit.
[6] The purposes of the written claim requirement are "to facilitate the prompt investigation of claims and insure equality among shippers," Miller v. Aaacon Auto Transport, Inc., supra, 447 F.Supp. at 1204, cited with approval in Wisconsin Packing, supra, 618 F.2d at 446.
[7] In this case, the period is nine months.
[8] Moreover, the Wisconsin Packing interpretation would permit a carrier to discriminate among shippers. A carrier could use this procedure to settle claims of preferred shippers and routinely decline to pay others under 49 C.F.R. § 1005.5, thus forcing other claimants to litigate.
[9] See Georgia, Florida, & Alabama Railway Company v. Blish Milling Company, 241 U.S. 190, 197, 36 S.Ct. 541, 544, 60 L.Ed. 948 (1915), in which the Supreme Court held that the parties could not waive the terms of the contract; "nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct, and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed." But see Miller v. Aaacon Auto Transport, Inc., supra, 447 F.Supp. at 1204-05.
[10] And hence would estop Superior from raising as a defense the written claim requirement of the tariff, bill of lading and regulations.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1512366/
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280 N.J. Super. 471 (1995)
655 A.2d 961
PLAZA 12 ASSOCIATES, PLAINTIFF-APPELLANT,
v.
CARTERET BOROUGH, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued January 30, 1995.
Decided March 30, 1995.
*473 Before Judges VILLANUEVA, WEFING[1] and BRAITHWAITE.
Peter L. Davidson argued the cause for appellant (Mandelbaum and Mandelbaum, attorneys; Steven R. Irwin, of counsel; Mr. Davidson, on the brief).
Richard M. Conley argued the cause for respondent (Conley and Haushalter, attorneys; Mr. Conley, of counsel and on the brief).
The opinion of the court was delivered by BRAITHWAITE, J.S.C. (temporarily assigned).
Plaintiff appeals from the Tax Court's dismissal of its tax appeal challenging the municipal tax assessment for the year 1993. We reverse.
Plaintiff filed a complaint with the Tax Court appealing the assessment of $4,287,700 by defendant, Borough of Carteret. The defendant propounded interrogatories upon plaintiff. Because plaintiff did not timely answer the interrogatories, defendant filed a motion to dismiss plaintiff's complaint. Plaintiff ultimately provided the answers and on July 30, 1993, defendant withdrew the motion. One of the interrogatories served on plaintiff sought "a true copy of all leases in use in connection with the subject property during the year under appeal in this action and in each of the five years immediately preceding." Plaintiff answered, "See attachments," and annexed to its answers the rent rolls dated May 1, 1993, July 15, 1992, and March 1, 1988. The rent rolls provided *474 the name of the tenant, percent of CAM,[2] square feet occupied, lease expiration, options, security deposit, monthly base rent, monthly CAM, monthly tax, monthly insurance and monthly payment. Defendant never objected prior to trial to what was provided in answers to its interrogatories, and did not make any motion to compel the production of the leases or to sanction plaintiff for failure to comply with discovery.
Plaintiff provided its expert's report on the value of the property four days before trial and the matter was tried on March 30, 1994. The only issue in the trial was the fair market value of the property as of October 1, 1992, which is the assessment date for the tax year 1993. Plaintiff's expert testified that, in his opinion, the fair market value of the property for the tax year 1993 was $3,449,900. Plaintiff's expert testified that he relied upon the capitalization of income approach, except for the McDonald's facility, in valuing the property.
When plaintiff's expert began to testify about utilizing the leases in valuing the property, counsel for defendant objected stating that the "testimony sought to be elicited deals with leases. We were not provided with leases in discovery." Plaintiff's counsel stated that he had received no objection to the rent rolls from defendant prior to trial, and therefore believed that the information provided was sufficient. He further stated that in the past if the discovery provided was insufficient, defendant's counsel would request more specific answers and since that was not done in this case, he believed that the rent rolls were sufficient. The trial court sustained the objection and would not "permit any testimony with regard to those leases." After another objection from defendant's counsel, the court further precluded plaintiff's expert from testifying as to gross rental income because the leases were not provided in discovery. Finally, when the expert attempted to testify from information contained in the rent rolls, the trial court sustained defendant's counsel's objection based on a lack of authentication *475 of the rent rolls, even though the answers to interrogatories were certified.
As a result of the trial court's rulings, plaintiff's counsel was unable to elicit testimony of any kind regarding the income of the subject property. Plaintiff did not seek to submit evidence that differed from the data which was submitted in answers to interrogatories. After counsel for plaintiff completed his direct examination, counsel for defendant moved to dismiss the complaint on the grounds that plaintiff failed to present "clear and persuasive evidence of a value of the property other than the assessment," which motion the trial judge granted.
Plaintiff has raised three points on this appeal. First, plaintiff contends that the trial judge committed reversible error by excluding evidence regarding lease data and the income from such leases because plaintiff failed to provide the leases in answers to interrogatories. Second, plaintiff asserts that the trial judge committed reversible error by excluding evidence regarding income for failure to authenticate rent rolls attached to interrogatories. Lastly, plaintiff contends that defendant's failure to object to plaintiff's answers to the interrogatories within a reasonable time prior to trial constitutes a waiver of any objection to the admissibility of evidence contained therein.
Here, the trial judge precluded the plaintiff from proving its case because of a failure to attach the leases to the answers to interrogatories. "Imposition of the sanction of exclusion of evidence ... because of the limiting effect of an interrogatory answer is always subject to the sound discretion of the trial judge." Skibinski v. Smith, 206 N.J. Super. 349, 354-55, 502 A.2d 1154 (App.Div. 1985).
But the application of the sanction is consigned to the sound discretion of the judge, subject only to the rule that the sanction visited upon the party must be just and reasonable. The factors which "strongly urge" the trial judge, in the exercise of his discretion, to suspend the imposition of sanctions, are (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence. This accords with the overriding objective of giving the defaulting party his day in *476 court, with due regard, however, to protecting the opposing party from the effects of surprise or other prejudicial factors.
[Westphal v. Guarino, 163 N.J. Super. 139, 145-46, 394 A.2d 377 (App.Div.), aff'd, 78 N.J. 308, 394 A.2d 354 (1978) (quoting Brown v. Mortimer, 100 N.J. Super. 395, 402, 242 A.2d 36 (App.Div. 1968)) (citations omitted).]
We are satisfied that the trial judge mistakenly exercised his discretion in precluding the evidence because the leases were not provided in answers to interrogatories. There was no design on the part of the plaintiff to mislead the defendant or the court. Certainly there was no element of surprise, inasmuch as plaintiff only sought to introduce evidence that was consistent with what had been provided in discovery. In addition, we find no prejudice to defendant had the evidence been admitted.
We particularly find no prejudice to the defendant, since it was in possession of the rent rolls some eight months prior to trial. The rent rolls provided much of the same information that would be found in the leases. Moreover, defendant had sought to dismiss plaintiff's complaint for failure to answer interrogatories and when the answers were provided, it withdrew its motion. After withdrawing its motion, it never communicated to plaintiff that the answers provided were inadequate or insufficient. Although plaintiff should have provided the leases in answers to the interrogatory, defendant "had no right to eschew discovery and then object to the admission" of evidence that was based upon information that was readily obtainable on request, and if denied, by motion. McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 172, 521 A.2d 851 (App.Div.), certif. denied, 108 N.J. 219, 528 A.2d 36 (1987); R. 4:23-1(a).
Defendant argues that it is a burden, financial and otherwise, to require the municipality to go that extra step of requesting the required information and if denied, filing a motion to obtain same. Instead, defendant asserts that it was proper to wait until trial and object to plaintiff's proofs because the leases were not provided, even though it had virtually all of the information contained in the leases in the submitted rent rolls.
*477 Defendant's position is akin to trial by ambush which violates "the purpose and spirit of the discovery practice, namely the pretrial opportunity of litigants to explore every avenue of inquiry in their search for the relevant facts and circumstances[.]" Pressler, Current N.J. Court Rules, comment 1 on R. 4:10-2 (1995). Here the only issue at trial was the value of the subject property. The only way for plaintiff to try his case is through an expert. The discovery rules are not to be used, as here, to preclude a party from presenting its case when the evidence neither surprises, misleads or prejudices the opposing party. The discovery rules are to provide "predictability and security in the conduct of litigation." Zaccardi v. Becker, 88 N.J. 245, 252, 440 A.2d 1329 (1982).
Here, plaintiff reasonably believed, because of no objection or motion prior to trial concerning his answers to interrogatories, that it had adequately provided the information sought by defendant. We hold that, in the absence of exceptional circumstances, a party receiving a "plainly unresponsive answer to an interrogatory seeking the facts" regarding a critical issue in the litigation has the burden to seek a more responsive answer or be barred at trial from objecting to evidence based on the insufficient or unresponsive answer. See Van Dam Egg Co. v. Allendale Farms, Inc., 199 N.J. Super. 452, 455, 489 A.2d 1209 (App.Div. 1985). The party cannot wait until trial and "sandbag" his opponent by then making an objection to the adequacy of the answers to interrogatories.
Plaintiff's expert should have been permitted to testify as to value based upon the rent rolls. The trial court refused to allow the testimony, stating that the rent rolls were not authenticated. There is no indication from the record that the rent rolls were going to be admitted into evidence. Authentication is a condition precedent to the admissibility of a writing. N.J.R.E. 901. Moreover, if facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." N.J.R.E. 703. We are satisfied that the rent *478 rolls satisfy this criteria. In addition, the record does not support the conclusion that plaintiff's expert did not review the leases in arriving at his opinion. In fact, the question to the expert and his answer thereto that led to defendant's counsel's objection would indicate otherwise. The question posed by plaintiff's counsel to the expert and the expert's response thereto on this subject was as follows:
Q. Okay, Let's turn to your income approach. Mr. Kilpatrick, you utilized certain subject leases in your income approach, page 8 and 9, and you came up page 10 you have a history of expenses?
A. That is correct.
Based on the above, we are satisfied that the trial judge should have allowed the expert to testify, and if defendant required the actual leases several remedies short of precluding the testimony, such as a brief recess or adjournment to get the leases, would have been appropriate.
We therefore reverse the dismissal of plaintiff's complaint and remand this matter for a new trial.
NOTES
[1] Judge Wefing did not participate in the oral argument. However, the parties consented to her participation in the decision.
[2] CAM is Common Area Maintenance charges.
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871 S.W.2d 352 (1994)
316 Ark. 119
ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant,
v.
Robert HARDY, Appellee.
No. 93-153.
Supreme Court of Arkansas.
February 28, 1994.
*354 G. Keith Griffith, Fort Smith, for appellant.
Eddie N. Christian, Fort Smith, for appellee.
DUDLEY, Justice.
The Arkansas Department of Human Services filed this paternity suit on behalf of Brenda Elliott, the mother of the child, and asked that Robert Hardy be found to be the father and that he be ordered to pay past and future child support. The chancellor heard the proof, decided the case, signed a final order setting out his ruling, and, in a second order, decreed that the final order was sealed. The Department appealed to the court of appeals. The court of appeals questioned whether it had jurisdiction and certified the case to this court for an interpretation of the various rules. We remanded the case for the parties to brief the issues of whether the chancellor validly sealed the final order and whether the appellate court obtained jurisdiction. Arkansas Dep't of Human Servs. v. Hardy, 314 Ark. 537, 866 S.W.2d 820 (1993). Their briefs have now been received, and the case is again submitted to us. We take jurisdiction, and reverse, modify, and remand.
The initial issue is whether the trial court entered a final order so that we have appellate jurisdiction. Rule 58 of the Arkansas Rules of Civil Procedure provides that "[e]very judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order Number 2." Administrative Order Number 2, in the material part, provides that a judgment or decree shall be "filed in the folio assigned to the action and shall be marked with its file number." Rule 4(e) of the Arkansas Rules of Appellate Procedure, which concerns the time for filing a notice of appeal, provides that an order is "entered" when it is "filed with the clerk of the court in which the claim was tried." The date a judgment is filed with a court clerk is denoted by the clerk marking or stamping the date and the word "filed" on the document. See Shaefer v. McGhee, 284 Ark. 370, 681 S.W.2d 353 (1984).
The final order in this case was set forth on a separate document as required by Rule 58. It contains the case number on the front page as well as the date the judge signed the order. It was filed with the clerk, and the clerk placed it in the folio assigned to the action, as required by Administrative Order Number 2. However, the clerk did not separately mark the final order because it was sealed in the envelope. Instead, the clerk taped a copy of the second order securely to the sealed envelope containing the final order. The second order provides: "The [final] Order made and entered by this court on the *355 19th day of October, 1992, is hereby sealed and filed in-camera and shall not be opened except by order of court of competent jurisdiction." The final order bears the identical style and date.
The issue is whether the final order was sufficiently marked by either the chancellor or the clerk to constitute entry. The clerk placed her filemark on the second order and then securely taped a copy of that second order onto the face of the envelope containing the final order so that there can be no doubt about the authenticity of the final order or the date it was handed to the clerk for placement in the folio. Consequently, we hold there was a sufficient marking of the final order to constitute an entry for purposes of this appeal. This holding is limited to the facts of this case, and, as can be seen from the next section of this opinion, it is a problem that should not arise again.
The foregoing issue came about because the chancellor sealed the final order, and, contrary to the arguments of both parties, we know of no authority for the sealing of a final order. One of the basic principles of a democracy is the people have a right to know what is done in their courts. Correlative of this principal is the vital function of the press to subject the judicial process to extensive public scrutiny and comment. See Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983). Secret final orders could defeat this synergy of the peoples' right and the press's function, especially in cases in which the State is a party, as in this case. In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the Supreme Court wrote that when public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason traditional Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial tribunals. We have no hesitancy in holding the final order in this case should not have been sealed.
There is no rule providing for secret final orders, but parts of files may be sealed, and some hearings may be closed to the public. The General Assembly has provided the general rule that "every person may freely attend the sittings of every court." Ark.Code Ann. § 16-10-105 (1987). However, other statutes provide that particular proceedings may be closed under certain circumstances. See, e.g., Ark.Code Ann. § 4-75-605 (Repl. 1991) (for cases involving trade secrets); § 9-9-217 (Repl.1993) (involving adoption proceedings); § 9-27-325 (Repl.1993) (for juvenile proceedings); and § 16-13-318 (1987) (involving domestic relations cases). Section 9-9-217 provides, "Adoption records shall be closed, confidential, and sealed unless authority to open them is provided by law or by order of the court for good cause shown." (Emphasis added.)
Without determining which branch of government has the power to make laws or rules providing that parts of files can be sealed or court proceedings can be closed, we note that Rule 26 of the Arkansas Rules of Civil Procedure provides for protective orders closing depositions, for protection of trade secrets, and for filing specified documents in sealed envelopes. In addition, Rule 6-3 of the Rules of the Supreme Court provides for anonymity in certain appellate proceedings by the use of the initials of the first and last name of children involved in adoption or juvenile proceedings. We often utilize this rule for appeals in adoption proceedings after the final order has been entered. See, e.g., In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). We have recognized the inherent authority of a trial court to issue appropriate protective orders to control court records, and, thus, the right to inspect public records is not absolute. See City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). Many jurisdictions have made similar holdings. See, e.g., Deere & Co. v. Finley, 103 Ill.App.3d 774, 59 Ill. Dec. 444, 431 N.E.2d 1201 (1981); Church of Scientology v. Armstrong, 232 Cal.App.3d 1060, 283 Cal.Rptr. 917 (1991); Werfel v. Fitzgerald, 23 A.D.2d 306, 260 N.Y.S.2d 791 (1965).
The inherent authority to seal parts of court files is tempered by the requirements that a request for sealing part of a file must be particularized, that there must be *356 some good cause for sealing part of a file, such as a trade secret, and that it should be in effect for only so long as is necessary to protect the specified interest. If a trade secret has no value after five years, the protective order should be for no longer than five years. Deere & Co. In Giltner v. Stark, 219 N.W.2d 700, 707 (Iowa 1974), the court ruled that factual details of a divorce action might be sealed long enough "to permit the conciliation process to have some hope of success," but after that time the files were to be open. For the related requirement of particularization of a need for closure of a courtroom see Arkansas Television Company v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983) and Arkansas Newspaper, Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984). In summary, the trial court had no authority to seal the final order in this case, and we order it unsealed.
The chancellor ruled that Robert Hardy is the father of the child. There is no cross-appeal of that issue. The only assignments of error are those raised by the Department on direct appeal. In the first of these assignments, the Department contends that the chancellor erred in fixing the amount of child support. The chancellor ordered the father to pay $300 per month. The Family Support Chart in effect at the time of the trial judge's ruling, see Guidelines For Child Support Enforcement, appendix to ARCP, provides for child support of $824 per month according to the Department. The Department's computation under the chart is not contested by Hardy.
The chancellor ruled that it would be inequitable to follow the chart. We have said that reference to the family support chart is mandatory, but awarding the amount set by the chart is not mandatory if it would be unjust or inequitable to do so, and if the reasons for not doing so are set out in written findings. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992). In such a case, the factors to be considered in determining the amount of support are listed in the per curiam setting out the Family Support Chart. See In Re: Guidelines For Child Support, 314 Ark.Appx., 863 S.W.2d 291 (1993). In this case the chancellor ruled that it would be inequitable to award the amount provided by the chart because: (1) the mother only requested $300 per month, (2) there is not, and never will be, a father-son relationship, and (3) the child will be a recipient of "governmental medicaid, dental and hospital insurance." The chancellor abused his discretion in making the ruling. The finding that the mother only requested child support of $300 per month was clearly erroneous. The mother requested past child support of $300 per month, but requested child support from the date of the hearing in the amount provided by the chart. The second factor, involving the father-son relationship, was incorrectly applied. That factor as used in the guidelines is to give a noncustodial parent some financial relief when the child or children spend an extraordinary amount of time with the noncustodial parent. In such a case, the noncustodial parent will obviously spend more on child support than is usual, and the custodial parent will be relieved of some of the expenses of raising the child or children. In such cases, support payments to the custodial parent may be reduced. However, that factor is not applicable to this case.
We summarily dispense with the third factor cited by the chancellor, that the father is relieved of part of the required child support because of "governmental medicaid, dental and hospital insurance." Medicaid is a governmental program designed in part to provide aid to dependent children whose income or resources are not sufficient to meet the costs of necessary medical care. See Arkansas Dep't of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993). It would be incongruous to hold that a father is relieved of child support because his child is receiving public assistance as a result of the father's failure to pay the full amount of child support. Consequently, we modify the ruling of the chancellor and order that child support be set at $824 per month commencing with the date of the final order.
The Department's second assignment is that the chancellor erred in refusing to make an award of back child support. The child was born on February 8, 1986. At that time the mother was married to another *357 man and contended that the child was fathered by her husband. She was soon divorced, and the husband was found not to be the father of the child. It was not until September 24, 1991, that the Department filed this complaint. Hardy is being required by this opinion to pay a large amount of support commencing with the date of the final decree. In Green v. Bell, 308 Ark. 473, 479-80, 826 S.W.2d 226, 230 (1992), in discussing back child support, we said, "the question is simply what is fair," and quoted from Ryan v. Baxter, 253 Ark. 821, 824-25, 489 S.W.2d 241, 244 (1973), as follows:
The granting or denial of such a recovery rests upon the equities in a particular case. We have in several cases, recognized the equitable nature of such an award. Thus, in order to find that the chancellor committed reversible error, we would have to hold that his finding as to where the equities lay was against the preponderance of the evidence.
We cannot say that under the circumstances of this case the chancellor's determination as to where the equities lay was against the preponderance of the evidence.
The Department's third assignment is well taken. In fact, it is conceded by Hardy. In the point, the Department contends that the chancellor erred in not ordering income withholding. Section 9-10-112(b)(1) of the Arkansas Code Annotated provides that support orders must include a provision for income withholding, absent a finding of good cause, in all cases filed pursuant to Title IV-D of the Social Security Act after October 1, 1989. This case fits within that category, and the chancellor did not make the required finding.
The Department's fourth, and final, assignment is that the chancellor erred in refusing to order the father to provide health insurance for the child. Our per curiam of May 13, 1991, setting out the child support guidelines provides: "In addition to the award of child support, the court order shall provide for the child's health care needs, which would normally include health insurance if available to either parent at a reasonable cost." In Re: Guidelines for Child Support Enforcement, 305 Ark. 613, 617, 804-807 S.W.2d (Ark.Cases) XXIV, XXVII (emphasis added). Consequently, the chancellor was obligated to make some sort of provision for health care coverage for the child. The chancellor may have thought he was complying with this provision when he found that the child would receive medicaid. However, there was no determination whether or not either parent has health insurance available to him or her at a reasonable cost, and we are unable to decide this issue on the record before us. Consequently, we remand for a determination of the child's health care.
We reverse in part, modify in part, remand for proof on the issue of health care, and remand for entry of orders consistent with this opinion.
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871 S.W.2d 368 (1994)
316 Ark. 290
The WEST MEMPHIS SCHOOL DISTRICT NO. 4 OF CRITTENDEN COUNTY, Arkansas; et al., Petitioners,
v.
The CIRCUIT COURT OF CRITTENDEN COUNTY, Arkansas, Respondent.
No. 93-902.
Supreme Court of Arkansas.
March 7, 1994.
*369 Kent J. Rubens, West Memphis, for appellants.
M. Scott Willhite, Memphis, TN, David Rees, George R. Wadley, Jr., Jonesboro, for appellee.
BROWN, Justice.
This is an original action for a writ of prohibition to prevent the Crittenden County Circuit Court from asserting jurisdiction over tort litigation against the West Memphis School District No. 4, its board of directors, and its superintendent, all of whom are the petitioners. The petitioners assert absolute immunity under various state statutes (Ark. Code Ann. §§ 6-19-103 (Repl.1993), XX-XXX-XXX (Supp.1993), and 21-9-301 (Supp.1993)) as a bar to the underlying tort claim. We deny the writ.
The following facts precipitated this action. Roger Patterson was hired as a school bus driver by the School District in 1986. A young girl, who was age 9 at the time of the complaint, lived along Patterson's bus route and was a daily passenger in 1988 and 1989. Due to the location of her home, she was the first student onto the bus in the morning and the last student to depart the bus in the afternoon. The Smiths are the parents of the girl. The Smiths filed a complaint against the school district, the school board, and the school superintendent, alleging that from November 1988 to December 1989, Patterson molested and sexually abused the girl on the school bus. The Smiths claimed that the school district, its board of directors, and the school superintendent were liable for Patterson's actions, and they sought damages. Specifically, they alleged that the defendants failed or refused to follow the guidelines for hiring school bus drivers or assuring safe pupil transportation as required by Ark. Code Ann. § 6-19-101 et seq. (Repl.1993), and breached their common duty as well. In addition, they asserted:
1. Patterson was convicted for a crime that involved sexual activity with a minor in 1963 in Indiana. He served time in prison for seven years for this crime.
2. Patterson was arrested for driving while intoxicated on more than one occasion while employed as a bus driver in West Memphis.
3. The board and superintendent "failed or refused" to discipline or supervise Patterson for the alcohol-related arrests.
*370 4. The acts of the defendants were intentional, malicious, outrageous, and grossly negligent acts and/or omissions.
5. The acts of the defendants resulted in physical and mental injury to the young girl and her parents.
6. The board, school district, and superintendent are liable under a theory of respondeat superior for the intentional acts of Patterson done in the scope of his employment.
7. Liability insurance was in effect at the time of the defendants' tortious conduct which provides coverage for the injuries and damages sustained by the Smiths.
The defendants who are the petitioners herein filed a motion to dismiss and asserted that the Smiths had failed to state a claim upon which relief could be granted under Ark.R.Civ.P. 12(b)(6). The motion raised as one ground the bar of statutory immunity.
The circuit court denied the motion but found that the board members could only be sued in their official capacities and not as individuals. The court further found that the defendants were not absolutely immune from liability, that the Smiths had plead sufficient facts to establish an intentional tort, and that the claims of negligence could be asserted if the defendants had liability coverage.
The petitioners next brought this original action seeking a writ of prohibition. They assert in their petition that prohibition is proper under Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987); overruled in part by The Wise Company, Inc. v. Clay Circuit, 315 Ark. 336-A, 869 S.W.2d 6 (1994) (supplemental opinion) and Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993).
A writ of prohibition is an extraordinary writ. McGlothlin v. Kemp, 314 Ark. 495, 863 S.W.2d 313 (1993). We have stated that it is only appropriate when the lower court is wholly without jurisdiction. Id. Jurisdiction is the power or authority of the court to act. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). The jurisdiction of the circuit court to hear civil cases absent a provision for exclusive jurisdiction of a particular matter in another venue is well settled. Commission of Judicial Discipline and Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990). We have consistently denied writs of prohibition where the lower court acted within its jurisdiction. See, e.g., Arkansas Highway Comm'n v. Munson, 295 Ark. 447, 749 S.W.2d 317 (1988) (chancery court has power to enjoin the enforcement of a void order); Commission of Judicial Discipline and Disability v. Digby, supra (circuit court has authority to entertain a declaratory judgment action but not action for costs and expenses).
Additionally, we have denied writs where the relief requested was based on an affirmative defense and not a question of jurisdiction. Ark. State Highway Comm'n v. Munson, supra, (res judicata is an affirmative defense); Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991) (statute of limitation is an affirmative defense and not jurisdictional). Likewise, we have stated that the claim of immunity of a state employee is a defense to be adjudicated. Jaggers v. Zolliecoffer, 290 Ark. 250, 718 S.W.2d 441 (1986).
In Fore v. Circuit Court of Izard County, supra, a writ of prohibition was granted following the denial of a motion for summary judgment. We have recently retreated from the overreaching language in Fore, however, and overruled the case in part. See The Wise Company, Inc. v. Clay Circuit, supra; Lupo v. Lineberger, supra. Indeed, we made it clear that a writ of prohibition was appropriate in Fore only because the Workers' Compensation Commission had exclusive jurisdiction of the matter. Lupo v. Lineberger, supra. Any further rationale for granting the writ in Fore has been repudiated by this court.
The following summarizes the inappropriateness of a writ of prohibition in cases such as the one before us:
[A] petition for a writ of prohibition is not the proper remedy for the failure of a trial court to grant a motion to dismiss. A writ of prohibition is an extraordinary writ and is only granted when the lower court is wholly without jurisdiction, there are no *371 disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted.
National Sec. Fire & Casualty Co. v. Poskey, 309 Ark. 206, 207, 828 S.W.2d 836, 837 (1992) (citations omitted); see also Lupo v. Lineberger, supra; Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992).
In this case, the petitioners seek to prevent the circuit court from proceeding with litigation when they have an immunity defense against such lawsuits. They focus on the language of two statutes in particular:
(a) It is declared that the directors of all school districts and special school districts in this state in the discharge of their duties as such directors act in a necessary governmental function.
(b) Therefore, no action for personal injuries or damage to property arising out of the acts, conduct, or omissions of such directors in their official capacities shall be brought or maintained in this state against directors personally.
Ark.Code Ann. § 6-19-103 (Repl.1993).
It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability and from suit for damages, except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.
Ark.Code Ann. § 21-9-301 (Supp.1993). The petitioners argue especially that these statutes foreclose the ability of the Smiths to bring a lawsuit against them, and the circuit court lacked jurisdiction over the matter.
We do not read the statutes to say that. What § 21-9-301 establishes is an immunity defense. That does not mean that the circuit court is without jurisdiction to hear a motion to dismiss on statutory immunity grounds. The circuit court recognized that intentional actions by board members are not protected by statutory immunity. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). The court further authorized additional discovery into liability coverage maintained by the school district. Ark.Code Ann. § 21-9-301 (Supp.1993). Section 6-19-103 disallows personal liability for board members, and the court followed that statute and ruled accordingly.
We hold that the circuit court acted within the bounds of its authority in ruling on the motion to dismiss. Jurisdiction within that court is not lacking.
Writ denied.
HAYS, J., concurs.
CORBIN, J., not participating.
HAYS, Justice, concurring.
The gist of the complaint filed by Kathy Smith and Tommy Smith against the petitioners is that by failing or refusing to follow proper guidelines in hiring Roger Patterson as a school bus driver, petitioners breached a statutory and common law duty owed to their daughter. The complaint asserts causes of action based on gross negligence, intentional tort and outrage. To the extent that the petitioners may have liability insurance coverage applicable to this case, I agree the trial court is not without jurisdiction. I write simply to express my view that the complaint fails to state a cause of action for an intentional tort or for the tort of outrage and was subject to dismissal under ARCP 12(b)(6).
We have held that for a complaint to assert an intentional tort it must be based on an allegation that the intentional or deliberate act was performed with a desire to bring about the consequences of the act. Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985); Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266 (1973).
As to outrage, we addressed the identical issue in Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985), and noted that no facts were alleged entitling the plaintiffs to relief by the tort of outrage:
Rule 12(b)(6) provides for dismissal of a complaint for "failure to state facts upon which relief can be granted." The two rules [Rule 12(b)(6) and Rule 8] must be read together in testing the sufficiency of a complaint; facts, not mere conclusions *372 must be alleged. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). Since no facts were alleged regarding the tort, the trial court was right to dismiss the claim.
Reduced to its elements, this complaint charges the defendants (petitioners) with hiring an individual who should not have been hired, and, had the petitioners followed the proper procedures, the alleged abuses might not have occurred. But no facts are pled which render that conduct outrageous, or from which we can infer there was any desire to bring about such consequences.
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544 S.W.2d 929 (1977)
Fidel DELGADO, Appellant,
v.
The STATE of Texas, Appellee.
No. 52298.
Court of Criminal Appeals of Texas.
January 5, 1977.
Toby Goldsmith, Fort Worth, on appeal only, for appellant.
Tim C. Curry, Dist. Atty. and Marvin L. Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for murder. Punishment was assessed by the *930 jury at twenty-five years. Appellant contends that the court erred in admitting evidence that one of the alleged killers, several days after the homicide at the funeral home, punched an eye of the deceased back into his head, and that the court erred in admitting testimony that appellant and the co-indictees refused to sign the magistrate's warning. We reverse upon the first contention.
The sufficiency of the evidence is not challenged. The offense occurred on June 16, 1974, between 10:00 and 10:30 p. m. Earlier that evening, Danny Salazar and the deceased, David Solis, had a fist-fight at the home of Jasper Galdiano's father. The fight was precipitated by an obscene gesture made by Solis. Afterwards, Solis apologized and told Danny that he hated his brother, Joe Salazar. Danny responded that he and his brothers would "get" Solis.
Later, Solis, his family and several friends went to the nearby home of Jasper Galdiano which was across the street from the residence of Danny Salazar.
At approximately 10:00 p. m., some children playing in Galdiano's front yard ran inside and said that several men had arrived with guns. The men had emerged from two automobiles, one of which was driven by Danny Salazar. The other was driven by appellant, who was accompanied by Joe Salazar, Edward Salazar and George Smith.
Jimmy Lozano and Solis came out of the Galdiano house to determine what was happening. As they walked toward appellant and his friends, shooting broke out. Solis suffered a fatal gunshot wound to the head. Appellant and his four companions left immediately.
Edward Salazar and George Smith both testified that they had followed Danny Salazar to his house to protect him from Solis. They further testified they were unaware that appellant had a shotgun and that Solis precipitated the violence by shooting at them with a pistol.
Appellant testified that he went to Danny's home to help protect him. He further testified that he fired the shotgun three times in self-defense after both Lozano and Solis shot at him.
Appellant was related to the Salazars by marriage. Likewise, the deceased was related to the Alcalas by marriage. An intense hatred existed between the two families as the result of Earnest Alcala, Jr.'s murder by David Perez two years earlier. Manuel and Joe Salazar had been present at that murder but refused to testify against Perez.
Danny and Joe Salazar were arrested and released on bond on June 17, 1974. Appellant was arrested and released on bond on June 18. He was tried first.
On June 19, three days after the murder, Joe Salazar and two other unidentified males visited the deceased's body while it lay in state at a Fort Worth funeral home and one or more of the men pushed the eye back into the head. Appellant was not present at the incident.
Appellant contends the court erroneously admitted evidence of the act involving Joe Salazar at the funeral home. He argues that the act was not committed during the conspiracy to murder and that it occurred after the conspiracy was completed.
The State contends that appellant's objections to the challenged testimony were insufficient to present the matter for review. The State called Florence Rodriquez, the deceased's sister, to develop the funeral home incident. Appellant objected as follows:
"MR. SHANNON: (Defense Counsel) Now Your Honor, we are going to object to this. It's immaterial, it's inflammatory, and I think I know what they are leading up to; it has no connection whatsoever with the defendant here, any activity on his part whatsoever."
When the judge indicated that he would sustain the objection, the prosecutor stated:
"Your Honor, we plan to connect this up to the defendant, as an act of co-conspirators, subsequent to the murder."
*931 The challenged testimony was then developed out of the presence of the jury and the objection was renewed.
The objections sufficiently apprised the court of the nature of his challenge to the admission of the evidence.
This testimony elicited by the State did not connect appellant to the incident at the funeral parlor. His answer that he did not know to the question, "It happened after somebody had went into Shannons Funeral Parlor and stuck their finger in his eye while he laid in the casket, didn't it?" did not constitute the same testimony that had been introduced over objection and did not constitute a waiver. Questions or statements of counsel not under oath do not constitute evidence.
The State proved that appellant and others acted together in murdering Solis. Such proof was by itself sufficient to establish a conspiracy. Morgan v. State, 519 S.W.2d 449 (Tex.Cr.App.1975). Declarations or acts of one conspirator may be used against another conspirator if the declaration or act occurred during the course of the conspiracy charged. Lapp v. State, 519 S.W.2d 443 (Tex.Cr.App.1975). See Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).
In essence, "a conspiracy is a partnership in crime." Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1949). An act or statement after the completion of a conspiracy is inadmissible. Colunga v. State, 527 S.W.2d 285 (Tex.Cr. App.1975). See Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949).
In the instant case, Joe Salazar was not acting during the conspiracy to commit murder. Since his actions at the funeral home occurred three days after the objective of the conspiracy was achieved, the "partnership in crime" was not then his purpose.
The record is devoid of any hint that the scope of the conspiracy was broader than the murder of David Solis. The commission of the murder completed the object of the conspiracy.
The State's reliance on Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1966), is misplaced. In Salazar, the defendant threatened to kill the brother of the deceased several months after the murder. We held that the statements were pertinent evidence to show express malice and rebut defendant's self-defense theory. In the case at bar, appellant was not involved in the funeral home incident. The eye mutilation may be relevant to show Joe Salazar's malice toward Solis and to rebut his potential self-defense theory. But the act is irrelevant and prejudicial insofar as appellant is concerned because the conspiracy was complete and Salazar acted alone.
Appellant also contends that the trial court erred in admitting evidence that he and two of his co-indictees refused to sign a statement that they had received the Miranda warnings.
This evidence was inadmissible, but since we reverse on the first contention it is not necessary to determine if this amounts to reversible error. It will not likely occur in the event of a new trial.
The judgment is reversed and the cause is remanded.
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203 B.R. 691 (1997)
In re Todd ULRICH, Debtor.
Bankruptcy No. 96-71697.
United States Bankruptcy Court, C.D. Illinois.
January 10, 1997.
*692 James D. Jones, Springfield, IL, for Debtor.
Mariann Pogge, Trustee, Springfield, IL.
OPINION
LARRY L. LESSEN, Bankruptcy Judge.
The issue before the Court is whether the Debtor may claim an exemption in a vehicle upon which the Trustee has avoided a lien.
The material facts are not in dispute. The Debtor, Todd Ulrich, filed a petition pursuant to Chapter 7 of the Bankruptcy Code on July 1, 1996. The Debtor scheduled in his personal property a 1989 Ford Thunderbird with a current market value of $5,300 and a lien to the Farmers State Bank of $14,000.00. The Debtor did not claim an exemption in the vehicle. The Debtor's schedule of secured claims indicates that the Thunderbird was the collateral for a construction loan incurred on July 24, 1993.
On July 17, 1996, the Farmers State Bank filed a Motion for Relief from Automatic Stay. The Bank claimed a perfected lien on the title pursuant to a security agreement and the notation of its lien on the title to the vehicle. The security agreement, however, only mentioned a Ford Bronco and a Ford Pickup; the Thunderbird is not included in the security agreement. Accordingly, the Court found that the Bank did not have a security interest in the Thunderbird, and the motion of the Bank to lift the automatic stay was denied on September 4, 1996.
On September, 16, 1996, the Debtor filed an amended schedule of exempt property. The Debtor now claims a $1,200 exemption in the Thunderbird pursuant to 735 ILCS 5/12-1001(c). The Debtor now values the car at $6,000.00.
The Trustee filed an Objection to Exemption on September 25, 1996. Noting that she was attempting to set aside a lien on the Thunderbird, the Trustee stated that the "Debtor cannot claim the exemption to the extent of the lien".
The Debtor argues that the Trustee's objection was not timely filed pursuant to Bankruptcy Rule 4003(b) because it was not *693 filed within 30 days of the conclusion of the § 341 meeting. The Debtor, however, did not amend his exemption schedule to add the Thunderbird until more than 30 days after the meeting of creditors. Rule 4003(b) specifically provides that a trustee has 30 days after "the filing of any amendment to the list or supplemental schedules" to file an objection. Accordingly, the Trustee's objection was timely filed.
The Trustee's objection to the Debtor's claim of exemption is based on 11 U.S.C. § 522(g), which provides as follows:
(g) Notwithstanding sections 550 and 551 of this title, the debtor may exempt under subsection (b) of this section property that the trustee recovers under section 510(c)(2), 542, 543, 550, 551, or 553 of this title, to the extent that the debtor could have exempted such property under subsection (b) of this section if such property had not been transferred, if
(1)(A) such transfer was not a voluntary transfer of such property by the debtor; and
(B) the debtor did not conceal such property; or
(2) the debtor could have avoided such transfer under subsection (f)(2) of this section.
The Debtor may not use § 522(g)(1) to claim an exemption in the Ford Thunderbird because the Debtor's grant of a security interest in his vehicle to the Bank was a transfer of property as defined by 11 U.S.C. § 101(54). There was no evidence to suggest that the notation of the Bank's lien on the title to the vehicle was not a voluntary act by the Debtor. Moreover, the Debtor may not claim an exemption in the Thunderbird under § 522(g)(2) because he could not have avoided the transfer under § 522(f)(2). Automobiles are not included in the list of exempt property upon which a debtor may avoid a nonpossessory, non-purchase-money security interest. In re Smith, 105 B.R. 217, 219 (Bankr.W.D.N.Y.1989).
The Debtor argues that because the Debtor never executed a security agreement granting the Bank a security interest in the Thunderbird, there was no lien for the Trustee to avoid. Therefore, the Debtor argues that § 522(g) is inapplicable to these facts. The important point, however, is that the Bank asserted a lien on the vehicle, and the certificate of title indicated that the Bank had a lien. In addition, the Debtor's schedules indicated that the Bank had a lien on the car, and that the Thunderbird was given as collateral for a construction loan. Further, there is authority in the State of Illinois which holds that the placing of a lien on a certificate of title constitutes a valid security interest even in the absence of a written security agreement. Peterson v. Ziegler, 39 Ill.App.3d 379, 350 N.E.2d 356 (5th Dist. 1976). While this Court disagrees with Peterson, See, In re Rodden, No. 86-71782, Adv. No. 86-7412 (Bankr.C.D.Ill. September 15, 1987), action was still necessary by the Trustee to nullify the Bank's claimed lien on the vehicle.
It is true, as the Debtor points out, that the Trustee has not filed a motion to set aside the Bank's lien. However, it is not necessary for a Chapter 7 trustee to commence a formal adversary proceeding or obtain a final judgment in order to prevail on an objection to a debtor's claim of exemption pursuant to § 522(g). In re Glass, 164 B.R. 759, 765 (9th Cir. BAP 1994), aff'd 60 F.3d 565 (9th Cir.1995). The important point is that the Trustee must be instrumental in the recovery of the property. In this case, the Debtor raised the issue of the lack of a security agreement in response to the Bank's motion to lift the automatic stay, but it was the Trustee who followed up on this issue and obtained the vehicle. The Trustee is presently attempting to sell the vehicle.
The Debtor emphasizes the fact that it was he, not the Trustee, who raised the issue regarding the validity of the Bank's security interest. The Debtor raised this issue in the context of an objection to a motion to lift the automatic stay, not in the context of the avoidance of a transfer or the recovery of property. While § 522(i)(2) allows a debtor to exempt property which he himself has recovered, this provision is limited to cases where the trustee chooses not to exercise his avoiding power. 11 U.S.C. § 522(h). Where the trustee does avoid a transfer, § 522(g) is *694 activated. Since the Trustee in this proceeding has chosen to act, § 522(g) rather than § 522(i) is applicable.
For the foregoing reasons, the Trustee's objection to the Debtor's claim of exemption in the 1989 Ford Thunderbird is allowed.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.
See written Order.
ORDER
For the reasons set forth in an Opinion entered this day,
IT IS THEREFORE ORDERED that the Trustee's objection to the Debtor's claim of exemption in the 1989 Ford Thunderbird be and is hereby allowed.
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440 Pa. Superior Ct. 47 (1994)
655 A.2d 112
SUN PIPE LINE COMPANY
v.
TRI-STATE TELECOMMUNICATIONS, INC. and Davis Enterprises, Inc.
v.
E.A. DESIGN, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts & Summerson, Inc.
Pier CIPRIANI and Ann Cipriani, His Wife, in Their Own Right and As Parents and Natural Guardians of Michael Cipriani, David Cipriani and Tricia Cipriani, Minors and Robert Leipholt and Susan Leipholt, His Wife, in Their Own Right and as Parents and Natural Guardians of Michael Leipholt, Melissa Leipholt and Jennifer Leipholt, Minors, and James J. Rowley and Gloria Rowley, His Wife, and John M. Atkins and Kathleen M. Atkins, His Wife, and George F. Hepp, Jr. and Marylynne Hepp, His Wife, and Pat G. Morales, Jr. and Divina Morales, His Wife, and George S. Hartman and Martha Hartman, His Wife, and Joseph P. Adams and Charlotte Adams, His Wife and Richard Foley and Jayne Foley, His Wife,
v.
SUN PIPE LINE COMPANY and Tri-State Telecommunications, Inc. and Davis Enterprises, Inc.
v.
E.A. DESIGNS, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts & Summerson, Inc.
SUN COMPANY, INC. and Sun Pipe Line Company
v.
Harold DAVIS and Roger Davis
v.
E.A. DESIGNS, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts and Summerson, Inc. and Tri-State Telecommunications, Inc.
Appeals of SUN PIPE LINE COMPANY and Sun Company, Inc.
Appeals of E.A. DESIGN, LTD.
Superior Court of Pennsylvania.
Argued October 18, 1994.
Filed December 28, 1994.
Reargument Denied March 2, 1995.
*53 Bruce J. Chasan, Kenneth Scott, and Albert M. Saltz, Wilson, Elser, Moskowitz, Edelman and Dicker, Philadelphia, for Sun Pipe Line Co. & Sun Co.
*54 Mitchell S. Pinsley, Philadelphia, for E.A. Designs, Ltd. & PA One Call Systems, Maple Shade Cable Co. and Newtown Twp. & Newtown Cablevision, Inc.
Gary Gremminger, Philadelphia, for Jan Gouza, Pickering Corts & Summerson, Inc. and Tri-State Telecommunications, Inc.
Before CIRILLO, OLSZEWSKI and HESTER, JJ.
HESTER, Judge:
Sun Pipe Line Company and Sun Company, Inc. (collectively "Sun") appeal and E.A. Design, Ltd. ("Design") cross-appeals from two judgment orders entered in these consolidated civil actions. The first order was entered on December 29, 1993; the second order was entered on January 25, 1994, and amended the first one. The four appeals were consolidated for our review. Neither appellant has raised any issues relating solely to the December 29, 1993 order; accordingly, we dismiss as moot the appeals from that order. We revise the January 25, 1994 order to provide for post-verdict interest on the total verdict at an annual rate of six percent and to impose joint and several liability as to the entire verdict, including delay damages. In all other respects, the judgment is affirmed.
This action arose as a result of a construction accident which occurred on November 12, 1982, during excavation work performed to install cable for a cable television system. The company hired to perform the excavation work by the cable franchisee ruptured one of Sun's pipelines, and 50,000 gallons of unleaded gasoline spilled into the area.
As a result, a class action was instituted by affected homeowners. The class action was instituted against Sun, and the defendants in that action either initially or eventually included the various entities and persons involved in the design, installation, and approval of the cable system which was being installed when the pipe was ruptured. In addition, Sun instituted a separate action to recover for its damages, including the costs of the gasoline, repairing the rupture, and cleaning *55 up the spill. The action instituted by Sun was consolidated with the class action. Finally, some affected homeowners opted out of the class action and instituted separate actions which never were consolidated with this action.
The trial court certified the homeowners as a class as to the issue of liability for the accident but determined that the damages of each home-owner would have to be established at separate trials. In September and October, 1986, the issue of liability for the accident was submitted to a jury. On October 20, 1986, the jury apportioned liability for the accident as follows: 1) forty percent to Tri-State Telecommunications Inc., which performed the underground cable installation; 2) eighteen percent to Sun, for failing to take appropriate actions to insure against rupture of its pipeline during utility excavation work; 3) fifteen percent to Jan Gouza and his firm, Pickering Corts & Summerson, Inc. (collectively "Gouza"), who was the township engineer responsible for approving the cable network installation plan; 4) fourteen percent to Design, which was hired to prepare the construction maps for the cable network; and 5) thirteen percent to Davis Enterprises, Inc., the owner of the cable franchise. We affirmed this liability determination in Cipriani v. Sun Pipe Line Co., 393 Pa.Super. 471, 574 A.2d 706 (1990).
During the liability phase, Tri-State and Davis settled with Sun for $4,500,000. Gouza has insurance coverage for the incident with limits of $1,000,000, and Design has insurance coverage for the incident with limits of $350,000. Gouza assigned to Sun his bad faith claim against his insurer for its failure to offer its policy limits in a timely fashion to settle the action against him, and in exchange, Sun has agreed not to execute its judgment in the action against him individually.
Design's insurer offered its policy limits of $350,000, on September 28, 1988. Gouza's insurer offered its policy limits of $1,000,000 on February 16, 1989. Sun rejected the tender of the policy limits. The class-action case was settled in 1991, and the final opt-out case was settled in October, 1992. The jury trial as to Sun's damages against the two remaining tortfeasors, Gouza and Design, commenced on December 14, *56 1992, and on December 21, 1992, the jury awarded Sun $8,080,362.37 in damages, including the following:
1. What do you find to be the fair and reasonable amount of damages incurred by Sun Pipe Line Co. for project management, bioreclamation, air monitoring, laboratory analysis, geological and photography services, well drilling, installation and well closure, purchase, rental and maintenance of scientific equipment, office expenses, cleanup and site maintenance, homeowner damages, lost product, labor costs, long term monitoring and closure costs?
$7,679,500
. . . .
3. What do you find to be the net fair and reasonable amount of damages incurred by Sun Pipe Line Company for its lost investment opportunity in connection with its purchase of seven homes, the maintenance on those properties, and later resale of those seven homes?
$382,853.
Sun then filed a motion to mold the verdict to reflect the joint and several liability of Design and Gouza for twenty-nine percent of the verdict, in accordance with the liability determination of the previous jury. Sun also filed a motion for delay damages under Pa.R.C.P. 238 and for reasonable expenses under Pa.R.C.P. 4019(d), the rule imposing sanctions for discovery violations.
On December 29, 1993, the trial court molded the verdict and entered judgment as follows:
JUDGMENT AND ORDER
AND NOW, this 29th day of December, 1993, upon consideration of Sun Pipe Line Company's Motion to Mold Verdict and Motion for Delay Damages Pursuant to Pa. R.Civ.P. 238, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. The damages awarded by the jury on December 21, 1992 are $8,080,362.37.
*57 2. Additional Defendant E.A. Design, Inc., Jan Gouza and Pickering, Corts & Summerson, Inc. are jointly and severally liable for 29% of the $8,080,362.37 or $2,343,305.00.
3. Delay damages are awarded to Plaintiff pursuant to Pa.R.Civ.P. 238 from November 12, 1983 (one year from the date of the accident) until September 28, 1988, (the date upon which Defendants offered policy limits) on 29% of $7,679,500.00 or $2,227,055.00.
4. Interest on the $2,227,055.00 shall be calculated as follows:
11-12-83 to 12-31-83 rate of 12.5% $ 37,375.55
1-1-84 to 12-31-84 rate of 12% 267,246.60
1-1-85 to 12-31-85 rate of 11.75% 261,678.96
1-1-86 to 12-31-86 rate of 10.5% 233,840.78
1-1-87 to 12-31-87 rate of 8.5% 189,299.68
1-1-88 to 9-28-88 rate of 9.75% 163,009.74
_____________
$1,152,447.00
5. Interest on the verdict shall accrue from the date of the verdict at the rate of 6% per annum.
6. Reasonable expenses to be awarded to Plaintiffs, pursuant to Pa.R.Civ.P. 4019(d), not including attorneys fees, are fixed at $74,415.14 pursuant to affidavit of Bruce J. Chasan, Esquire, of March 1, 1993, (paragraph 57).
The trial court then issued a revised judgment on January 25, 1994, as follows:
REVISED JUDGEMENT AND ORDER
AND NOW, this 25th day of January, 1994, upon consideration of Sun Pipe Line Company's Motion to Mold Verdict and Motion for Delay Damages Pursuant to Pa.R.Civ.P. 238, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. The damages awarded by the jury in its verdict of December 21, 1992 are $8,080,362.37.
*58 2. Additional Defendant E.A. Design, Inc., Jan Gouza and Pickering Corts & Summerson, Inc. are jointly and severally liable for 29% of the $8,080,362.37 or $2,343,305.00.
3. Delay damages are awarded to Plaintiff pursuant to Pa.R.Civ.P. 238 from November 12, 1983 (one year from the date of the accident) until September 28, 1988, (the date upon which Defendants offered policy limits) on 29% of $7,679,500.00 or $2,227,055.00.
4. Interest on the $2,227,055.00 shall be calculated as follows:
11-12-83 to 12-31-83 rate of 12.5% $ 37,375.55
1-1-84 to 12-31-84 rate of 12% 267,246.60
1-1-85 to 12-31-85 rate of 11.75% 261,678.96
1-1-86 to 12-31-86 rate of 10.5% 233,840.78
1-1-87 to 12-31-87 rate of 8.5% 189,299.68
1-1-88 to 9-28-88 rate of 9.75% 163,009.74
______________
$1,152,451.31
5. Interest on the verdict, including delay damages as determined in paragraph 4 hereof, or $2,343,305.00 plus $1,152,451.31 shall accrue from the date of the verdict. Interest shall not accrue on sums awarded for reasonable expenses.
6. Reasonable expenses to be awarded to Plaintiffs, pursuant to Pa.R.Civ.P. 4019(d), not including attorneys fees, are fixed at $74,415.14 pursuant to affidavit of Bruce J. Chasan, Esquire, of March 1, 1993, (paragraph 57). Additional reasonable expenses are awarded to Plaintiffs in the sum of $3,951.36 pursuant to supplemental affidavit of Bruce J. Chasan, Esquire, of April 12, 1993.
Sun filed appeals from both judgments. Design filed cross-appeals from both judgments. In its appeals, Sun raises five issues for our consideration, and Design also raises five issues in its cross-appeals. In order to resolve these appeals in a logical and orderly fashion, we will address all contentions relating to the same matters together.
*59 Before we address the issues, however, we will make two observations. First, it is time to end this matter as it has been twelve years since the accident. In this appeal, we have endeavored to avoid a remand as we have concluded that little or nothing will be accomplished by such action. Enough time in our court system has been consumed.
Second, this has been a complex case, and we believe that the trial court's final judgment achieves a fair and equitable resolution of the competing equities involved. Contrary to the implication in Sun's brief, Gouza and Design were not unreasonable in proceeding through the liability phase of this litigation. Their efforts to limit or absolve their own liability, in light of the primary liability of the other parties involved, are completely understandable.
Furthermore, in this appeal, Sun attempts to appear as the innocent, uncompensated victim in this saga, and we do not accept this portrayal. Sun ignores its own fault in the 1982 accident, and the money it already has received. The first jury determined that Sun was more responsible for the accident than Gouza and Design due to the fact it failed to join Pennsylvania One-Call System, and it designated the location of its pipeline inadequately. We affirmed this liability determination in the prior appeal. In addition, Sun recovered $4,500,000, in excess of one-half of its damages, when it settled with Tri-State and Davis. Sun was offered an additional $1,350,000, the policy limits of the insurers, from Design and Gouza by 1989.
The first set of issues concerns the trial court's assessment of delay damages. Design contends that Rule 238 does not apply to this litigation due to the nature of the action and the type of relief sought by Sun. Rule 238 provides in relevant part (emphasis added):
(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the *60 verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall become part of the verdict, decision or award.
Design's argument as to the applicability of Rule 238 to this action is two-fold. Design begins with the statement that Rule 238 "should not be applicable to indemnity and contribution actions." Cross-appellant's brief at 36. It then argues that even if Rule 238 applies to indemnity and contribution actions, it should not be applied to this action, constituting "environmental litigation," since the purpose of the rule is to eliminate court congestion, and environmental litigation occupies a small percentage of docketed cases.[1]Id. at 40.
Thus, the first part of the argument contains a factual assumption that this case is one of indemnity and contribution. The second argument contains a policy assumption that only cases of a type consuming court time fall within Rule 238.
We reject the first argument because this case is not one involving solely indemnity and contribution. There is no question that this case has a component part that involves indemnification and contribution since Sun recovered for sums expended in repairing the damage caused to the property of people other than itself, the plaintiff-homeowners, and a portion of the damage award is its claim for money due as a result of the class action. To the extent this action does involve Sun's contribution claims as a joint-tortfeasor, the action does resemble a contract action for money due, wherein Rule 238 does not apply. See, e.g., Reliance Universal, Inc. v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 454 A.2d 39 (1982) (Rule 238 not applicable in contract action); Rizzo v. Haines, 357 Pa.Super. 57, 515 A.2d 321 (1986) (Rule 238 not applicable in legal malpractice action), aff'd, 520 Pa. 484, 555 A.2d 58 (1989); Wainauskis v. Howard Johnson Co., 339 *61 Pa.Super. 266, 488 A.2d 1117 (1985) (Rule 238 does not apply to an action for malicious prosecution).
However, this action is more than one involving contribution and indemnification. Sun also instituted a separate action for its own property damage caused by the pipeline rupture, and this action was consolidated with that of the homeowners. The trial court assessed delay damages on the $7,679,500,[2] which the jury awarded for the following:
[T]he fair and reasonable amount of damages incurred by Sun Pipe Line Co. for project management, bioreclamation, air monitoring, laboratory analysis, geological and photography services, well drilling, installation and well closure, purchase, rental and maintenance of scientific equipment, office expenses, cleanup and site maintenance, homeowner damages, lost product, labor costs, long term monitoring and closure costs[.]
Thus, the damages are a hybrid award of Sun's own property damage and its contribution claims as a joint-tortfeasor in the class action. The real issue is whether Rule 238 should be applied in this "hybrid" case. In resolving this issue, we first look to the language of Rule 238 itself, which states that "[a]t the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded. . . ."
These actions were instituted by plaintiff-homeowners for personal injuries and property damage. Sun's consolidated case similarly was instituted for both its property damage consisting of the lost gasoline and pipeline rupture and attendant environmental clean-up costs. Eventually, damages were recovered for Sun's payments to the homeowners, which are in the nature of contract damages, and for its own property *62 damage. Nonetheless, Rule 238, on its face, applies since these actions were brought for bodily injury and property damage.
In addition, in concluding that Rule 238 is applicable to this action, we are guided by the fact that Rule 238 is designed to remedy two evils. As noted above, Design chose to focus on one, preventing court congestion, in presenting its argument. The second, as Sun notes, involves a substantive right of the prevailing plaintiff. Rule 238 is designed to compensate the prevailing plaintiff for loss of use of funds that the jury verdict reflects were owed by the defendant to the plaintiff. See Schrock v. Albert Einstein Medical Center, 527 Pa. 191, 589 A.2d 1103 (1991) (fundamental fairness requires that plaintiffs receive interest on what is essentially their money for the period defendants held it until trial). Thus, Rule 238 is designed to award prejudgment interest, which normally was not available in an action involving personal injury and property damage.
Even if delay damages were not recoverable, Sun would be entitled to some form of prejudgment interest.
A review of the case law reveals that the trend of the courts has been to take an equitable approach in determining interest as an element of damages. The Pennsylvania courts have also adopted this approach, and in equity cases, the award and rate of interest allowed is at the discretion of the chancellor. An examination of the cases dealing with the charge and allowance of interest will disclose many difficulties, but the decided trend of courts of law and courts of equity has been to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case. Unless a case be found, which is a conclusive precedent, the safest and at the same time the fairest way for a court is to decide questions pertaining to interest according to a plain and simple consideration of justice and fair dealing.
*63 Smith v. Mitchell, 420 Pa.Super. 137, 144-145, 616 A.2d 17, 21 (1992) (citations and emphasis omitted).
Therefore, even if this case were construed as one involving purely contract principles of indemnification and contribution, Sun, in fairness and equity, should be compensated for loss of use of the funds. See also Spang & Co. v. USX Corp., 410 Pa.Super. 254, 599 A.2d 978 (1991) (it is up to the discretion of the trial court to award prejudgment interest in a contract action even though plaintiff's recovery was not for liquidated amount). At this point, however, we have no intention of remanding to the trial court for a determination of whether prejudgment interest should be awarded, in light of the unique circumstances of this case, as its award of delay damages fulfills the same purpose.
Whether it is awarded as Rule 238 delay damages or as contractual prejudgment interest, Sun is entitled to be compensated for the fact that it has not had the money the jury determined that it was owed as of 1982. The award of this element of damages hardly can be viewed as "punitive," as suggested by Design, who has had the benefit of using the money since the 1982 accident. Brief of cross-appellant at 42. Sun's entitlement to interest also has nothing to do with Design's pre-1988 good faith efforts to determine its liability. It simply has to do with the fact that Design had the use of this money.
We now discuss Sun's arguments as to delay damages. On September 28, 1988, Design's insurer offered its policy limits of $350,000 and on February 16, 1989, Gouza's insurer offered its policy limits of $1,000,000. The trial court, as noted above, stopped the accrual of delay damages against both parties as of September 28, 1988.[3] Sun suggests that since the verdict against the two defendants, $2,343,305, was more than 125% of the offers, $1,350,000, delay damages continued to accrue until the time of the verdict. We disagree, based upon the series of cases wherein insurers offered their policy *64 limits and the insureds were insolvent. Miller v. Hellman, 433 Pa.Super. 539, 641 A.2d 592 (1994); Krichten v. Wolpert, 431 Pa.Super. 194, 636 A.2d 196 (1994); Krysmalski by Krysmalski v. Tarasovich, 424 Pa.Super. 121, 622 A.2d 298 (1993); Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986).
In those cases, we held that a plaintiff may not be awarded delay damages pursuant to Rule 238 after the date the defendant's insurer offers its policy limits if the trial court determines that due to the defendant's indigency, the offer of the policy limits was the full amount available for payment of the plaintiff's claim and it was impossible for the defendant to have offered more.
Sun raises a number of contentions as to the propriety of the trial court's decision to stop the accrual of delay damages. The first two are that: 1) the trial court should have performed an evidentiary hearing to determine the insolvency of Gouza and Design as of the date of the offer, and 2) the action was improper in the absence of an indication that neither defendant could have offered more.
We reject these arguments. Gouza transferred to Sun his bad faith claim against his insurer, and in exchange, Sun agreed not to execute any judgment which it obtained against the personal assets of Gouza. See Appellant's brief at 16. Therefore, whether Gouza is bankrupt or could offer more is totally irrelevant. Gouza is not liable to Sun, and Sun can get nothing more from him. Further, the fact that Design is bankrupt is well documented. See Reproduced Record at 1965a-67a, 1969a-73a; Supplemental Reproduced Record at 76b-90b, 135b-143b.[4] It would be an exercise in futility to remand for an evidentiary hearing on Design's bankrupt status or ability to tender money. Compare Krysmalski v. Tarasovich, supra (evidence indicated that defendant had *65 personal asset, $60,000 apartment building, which he failed to offer in addition to insurance limits).
Sun also argues that this case is distinguishable from the above line of cases because the liability limits were not offered until after the liability trial. This is a distinction without a difference. The fact is that the full policy limits were tendered to Sun, and it had the immediate right to the money. At that point, it was Sun's fault it lost the right to the use of that money. Berry and its progeny make no distinction as to what phase of the proceedings the policy limits are tendered. If delay damages have started to accrue, they cease under the reasoning applied in those cases when full policy limits are tendered, and the plaintiff could obtain no further money against the defendant personally. That is what occurred here. If plaintiff can get nothing more than what is offered, there is no purpose in continuing to assess delay damages. The maxim, "Cessante ratione legis, cessat et ipsa lex" applies.[5]Hengst v. Hengst, 491 Pa. 120, 420 A.2d 370, 371 (1980). Sun's arguments on the amount of delay damages assessed are rejected.
The next set of issues concerns the application of Pa.R.C.P. 4019(d). Sun argues that it should have been awarded the approximately $475,000 in attorney's fees it expended in the damages trial as a discovery sanction due to the failure of Gouza and Design to admit to the amount of Sun's damages, which it outlined in a set of requests for admissions sent to those two parties.
In these requests for admissions, the two defendants were asked to admit not only the amount but the reasonableness and necessity of the costs incurred. R.R. at 1689-1704. Thus, Sun's request for admissions amounted to a request for an admission to the very issue at the damages trial.
Sun posits, "[Design] and Gouza did not admit any significant portion of [Sun's] requests for admissions. [Design] and Gouza refused even to admit the amount of [Sun's] losses despite the fact both [Design] and Gouza were provided with *66 ample opportunity to review and evaluate the expense documents. As a result, [Sun] was required to call a number of witnesses to testify not only as to the necessity and reasonableness of the damages, but also as to the amount of the damages incurred by [Sun.]" Appellant's brief at 36.
That is what every party has to do at every trial prove its case. A jury trial cannot be avoided by the promulgation of a set of requests for admissions where a defendant has to agree that plaintiff does not have to meet its burden of proof at the upcoming trial. Sun had a burden of establishing its damages by a fair preponderance of the evidence. See Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987). In fact, the jury awarded $641,117.08 less than Sun requested in damages, establishing that Design and Gouza were correct in refusing to "admit" to the necessity, reasonableness, and amount of Sun's damages.
Furthermore, a trial court may not, as a discovery sanction, award general counsel fees incurred during trial, and Sun was not entitled to recover its trial-related attorney's fees for misconduct in discovery. See Commercial Trading Co. v. Milsan Mills Inc., 327 Pa.Super. 407, 476 A.2d 16, 20 (1984). Only counsel fees incurred as a direct result of the discovery violation should be imposed as a discovery sanction except in the most egregious cases. Id. In our system of jurisprudence, the winning litigant simply is not entitled to attorney's fees from the losing litigant.
On the other hand, we also reject Design's claim that the award of $78,366.50 in expenses under 4019(d) was improper. It appears that certain expenses were not contested at trial and that Design and Gouza eventually stipulated as to some of the fees and expense incurred in the clean up during the testimony of the witness called to establish those damages. R.R. at 1074a-1077a. Thus, if Design and Gouza thoroughly answered the requests for admissions by admitting to the portions of the damages which they were not going to contest at trial, Sun could have avoided some expenses at trial.
*67 It is settled that the specific sanction to be imposed under Rule 4019 is a matter left to the discretion of the trial court. Pride Contracting, Inc. v. Biehn, 381 Pa.Super. 155, 553 A.2d 82 (1989). Herein, we defer to the trial court's assessment that the failure of Design and Gouza to more carefully answer the requests for admissions warranted the imposition of Sun's trial expenses.
In its appeal, Sun submits that the trial court erred in determining that Gouza and Design were not jointly and severally liable for the delay damages portion of the verdict. In its appeal, Design not only contests this argument, it contends that the trial court erred in not stating explicitly in the order that Design and Gouza are not jointly and severally liable for delay damages. Sun has taken the correct position on this issue. Defendants are jointly and severally liable for delay damages. Tindal v. Southeastern Pennsylvania Transportation Authority, 385 Pa.Super. 94, 560 A.2d 183 (1989) (multiple defendants are jointly and severally liable for entire amount of delay verdict, including damages).
Design suggests that it is not jointly and severally liable for the delay damages based on our holding Jazbinsek v. Chang, 416 Pa.Super. 300, 611 A.2d 227 (1992). In Jazbinsek, we ruled that a settling defendant was not liable for delay damages accruing after the defendant made an offer which operated to toll the accuracy of delay damages. However, the delay damages at issue herein were imposed for the period prior to Design's offer. It is clear that Design is jointly and severally liable with Gouza for the delay damages imposed.
Finally, both appellants take umbrage with the trial court's actions with respect to post-verdict interest. Sun's position is that the trial court, at the least, should have expressly stated in its January 25, 1994 order that post-verdict interest on the award will accrue at six percent a year. Sun also posits that it is entitled to post-judgment interest calculated under Rule 238 rather than merely at the statutory rate of six percent. We accept Sun's first argument, in light of 42 Pa.C.S. § 8101, and reject its second argument. Pa.R.C.P. *68 238(a)(2)(i), (ii) (delay damages assessed "up to the date of the award, verdict or decision"); see also Rivera v. Philadelphia Theological Seminary, 398 Pa.Super. 264, 580 A.2d 1341 (1990).
As to post-judgment interest, Design's position is that post-judgment interest is not assessable on the delay damages portion of the judgment. This is incorrect. Delay damages become part of the verdict, under the express language of Rule 238. Pa.R.C.P. 238 ("damages for delay . . . shall become part of the verdict, decision or award"). Post-judgment interest applies to the verdict. 42 Pa.C.S. § 8101 ("a judgment for a specific sum of money shall bear interest at the lawful rate from the date of the verdict or award . . ."). There is nothing unfair or inequitable in requiring Design to pay interest on money which it owes to Sun. However, as the award of expenses as a discovery sanction is not a part of the verdict, the trial court, in its discretion, was permitted to decline to award interest on that amount.
Accordingly, we enter the following order:
The appeals at 573 and 690 are dismissed as moot. The January 25, 1994 judgment is revised to read that Jan Gouza and Pickering Corts & Summerson Inc. and E.A. Designs, Inc. are jointly and severally liable for the $2,343,305.00 verdict and the $1,152,451.31 in delay damages. Judgment also is revised to read that the amount of interest awarded on the verdict of $3,495,756.31 shall be six percent which shall start to accrue as of the date of the verdict. In all other respects, the judgment entered on January 25, 1994, is affirmed.
NOTES
[1] Design also argues that certain periods prior to tender of the policy limits of its insurer are excludable under Rule 238. However, it is clear that none of its claims regarding excludable time fall within the ambit of Rule 238(b), which defines when time is excludable, see brief of cross-appellant at 43-44, and we reject those claims.
[2] In light of this, we are puzzled by Design's argument, which is made at page forty-five of its brief, that delay damages were improperly assessed against the lost profit award of $382,853. As indicated clearly in paragraph three of the judgment, the court awarded delay damages only on the $7,679,500 awarded in the first paragraph of the jury verdict. Thus the court did not assess delay damages against Design for the $382,853 awarded for Sun's lost investment interest.
[3] At no point in its brief does Sun argue that Gouza's delay damages should have ceased as of February 16, 1989.
[4] An affidavit of Max Spector, former president of Design, indicates that as of October, 1989, Design had a negative balance sheet of approximately $180,00 and that it went out of business in 1990. It further indicates that throughout the entire course of this action, it had no assets to offer.
[5] The reason for the law ceasing, the law itself also ceases.
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871 S.W.2d 333 (1994)
316 Ark. 22
Jim C. PLEDGER, Director, Arkansas Department of Finance and Administration, Appellant,
v.
C.B. FORM COMPANY, Appellee.
No. 93-844.
Supreme Court of Arkansas.
February 21, 1994.
*334 Ricky L. Pruett, Little Rock, for appellant.
Kinard, Crane and Butler, Woodward and Epley, Magnolia, for appellee.
DUDLEY, Justice.
This case involves the interpretation and construction of the Arkansas Gross Receipts Act of 1941, as amended. The chancellor ruled that the taxpayer's manufacture of forms, or molds, is exempt from the gross receipts, or sales, tax. We affirm.
The taxpayer, C.B. Form Company, manufactures plaster and cardboard forms for sale to its sole customer, American Fuel Cell and Coated Fabrics Company, or Amfuel. Amfuel utilizes the forms to build fuel cells that fit into a cavity in the wing and fuselage of military and commercial aircraft. In manufacturing the fuel cells, Amfuel applies a precut rubber sheeting or coated fabric to the exterior surface of the form. Two or more plies may be used. This creates an uncured, or green, fuel cell. The green cell and the form inside it are placed in a large autoclave to complete the adhesion process and make one integral unit of the rubber coated fabric. The heat and pressure of the autoclave, in combination with the form within the fuel cell, cause the uncured cell to acquire its permanent physical shape and characteristics. After curing, the cell and its form are submerged in a hot water vat to soften the interior plaster or cardboard form. The form is removed piece by piece through openings in the cell for fuel lines or refueling portals. The cardboard or plaster form is completely destroyed during removal and is hauled to a landfill as unusable waste. The interior of the fuel cell is inspected and packaged for shipment to the customer.
The taxpayer thought that its forms were exempt from the sales tax under that part of the machinery and equipment exemption that provides an exemption for molds and dies, and filed a claim under the Arkansas Tax Procedure Act for a sales tax refund of slightly more than $86,000. The Revenue Legal Counsel of the Department of Finance and Administration denied the claim for refund. The taxpayer filed suit in chancery court and alleged that the Department had erroneously denied its claim for the refund. The case was submitted to the chancellor on a stipulation of facts. The chancellor ruled that the forms came within the exemption that provides for "molds ... that determine the physical characteristics of the finished product." See Ark.Code Ann. § 26-52-402(c)(2)(B)(i) (Repl.1992).
Our standard of review of these cases is well settled. The taxpayer must establish an entitlement to an exemption from taxation beyond a reasonable doubt. Pledger v. Baldor Int'l, 309 Ark. 30, 827 S.W.2d 646 (1992). A strong presumption operates in favor of the taxing power. Ragland v. General Tire & Rubber Co., Inc. 297 Ark. 394, 763 S.W.2d 70 (1989). Tax exemptions are strictly construed against the exemption, and we have written that "to doubt is to deny the exemption." Baldor, 309 Ark. at 33, 827 S.W.2d at 648. We review tax cases de novo. Pledger v. Easco Hand Tools, Inc., 304 Ark. 47, 800 S.W.2d 690 (1990).
The chancellor based his ruling on the following subparts of the applicable statute, Ark.Code Ann. § 26-52-402:
There is specifically exempted from the tax imposed by this act, the following:
(1)(A) Gross receipts ... derived from the sale of tangible personal property consisting of machinery and equipment used directly in producing, manufacturing, fabricating... articles of commerce at manufacturing... plants ... in the State of Arkansas....
(2)(B) Machinery and equipment `used directly' in the manufacturing process shall include, but shall not be limited to, the following:
(i) Molds and dies that determine the physical characteristics of the finished product or its packaging material. *335 Ark.Code Ann. § 26-52-402(a) (Repl.1992) (emphasis added).
The Department makes four assignments of error. The first of these is essentially a non-issue. In it, the Department argues that the forms do not qualify for an exemption as items of tangible personal property sold for resale under Ark.Code Ann. § 26-52-401(2)(A) (Supp.1993). The chancellor did not rely on this subsection of the statue, and the taxpayer readily concedes the point. Instead, the taxpayer seeks to claim the exemption under the "mold and die" exemption quoted above. We address the point only to make clear the distinction between the two statutes.
Section 26-52-401 exempts from the collection of sales or use tax, gross proceeds on products that are sold for resale. The purpose of this statute is to prevent double taxation. Hervey v. Southern Wooden Box, 253 Ark. 290, 486 S.W.2d 65 (1972). Subsection (12)(B) allows property sold for use in manufacturing to be classified as having been sold for resale if the property "becomes a recognizable, integral part of the manufactured ... product." Items that are destroyed or disposed of in the manufacturing process do not qualify for this exemption because if they are destroyed there is no possibility of double taxation. See Ragland v. General Tire & Rubber Co., 297 Ark. 394, 763 S.W.2d 70 (1989). The forms manufactured by the taxpayer in this case do not become a "recognizable and integral" part of the finished fuel cell. If the taxpayer were claiming an exemption under this statute, it would be denied.
A different section, section 26-52-402, provides the exemption for machinery and equipment used directly in the manufacturing process. The purpose of this "machinery and equipment" statute is "to encourage capital investment in industrial, utility and manufacturing enterprises" for the "industrial development of the State." See Act 113 of 1967 (codified at Ark.Code Ann. § 26-52-402 (Repl.1992)) (emergency clause). Section 26-52-402(a)(2)(C) provides that the machinery and equipment exemptions are "incentives to encourage the location of new manufacturing plants in Arkansas, the expansion of existing manufacturing plants in Arkansas, and the modernization of existing manufacturing plants in Arkansas through the replacement of old, inefficient, or technologically obsolete machinery and equipment." The taxpayer contends it is entitled to the exemption under the subsection of this statute that exempts from taxation "molds and dies that determine the physical characteristics of the finished product." Ark.Code Ann. § 26-52-402(c)(2)(B)(i) (Repl.1992).
The heart of the Department's appeal lies in its second assignment of error. It argues that the taxpayer is not entitled to an exemption under the mold and die exemption, at section 26-52-402(c)(2)(B)(i). There is no dispute about the facts. The parties stipulated that the "words `form' and `mold' are used interchangeably in the industry," and the Department acknowledges that the forms "determine the physical characteristics of the fuel cells." The Department argues that the chancellor erred as a matter of law in ruling that the forms come within the exemption for "molds and dies that determine the physical characteristics of the finished product."
The Department contends that, pursuant to our cases, a mold must have continuing utility and be dynamic to qualify as machinery and equipment. It argues that since these molds are destroyed, they have no continuing utility, and are not dynamic and, therefore, do not qualify for the exemption. The argument misses the point that the forms come within the express language of the exemption for "molds and dies that determine the physical characteristics of the finished product."
The statute provides an exemption for molds that determine the physical characteristics of the finished product. It does not require that they be permanent. We have often written that legislative intent must be gathered from the plain meaning of the language used in an act. Roy v. Farmers & Merchants Ins. Co., 307 Ark. 213, 819 S.W.2d 2 (1991). The meaning of the words used in mold and die exemption is clear: There is an exemption for molds that determine the physical characteristics of the finished product. In addition, when the sentence in the *336 subsection exempting molds is read in full, it appears that the Department's argument is contrary to the expressed legislative intent. The full sentence providing the exemption is "Molds and dies that determine the physical characteristics of the finished product or its packaging material" Ark.Code Ann. § 26-52-402(c)(2)(B)(i) (emphasis added). Packaging material would not ordinarily have continuing utility. There is no expressed legislative intent to construe the statute as proposed by the Department.
The Department's argument that equipment or machinery must have "continuing utility" had its genesis in our case of Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 118 (1987). In that case the trial court ruled that gravel, which was used as a base for a temporary road to an oil extraction project, was exempt under section 26-52-402 as "equipment" used directly in the process of extracting oil. We reversed and held that the term "equipment" did not include gravel used on a temporary road. We noted that the term "equipment" was not defined in the statute, and is "an exceedingly elastic term, the meaning of which depends on context." Id. at 520, 732 S.W.2d at 120. We then looked at definitions of the term and held that gravel did not fit within any of them. One of the reasons for this holding was that the gravel had no continuing utility after the oil-extraction project ended. Id. Unlike the statute applicable to that case, the subsection of the statute applicable to the case at bar specifically defines molds that determine the physical characteristics of the finished product as "machinery and equipment." Thus, under the language of the statute, it is not necessary that molds have a "continuing utility" to come within the statutory definition of equipment.
The Department similarly argues that molds cannot come within the mold and die exception unless they also fall within the definition of "machinery" that we set out in Heath v. Research-Cottrell, Inc., 258 Ark. 813, 529 S.W.2d 336 (1975). In that case, the taxpayer sought an exemption for a cooling tower as machinery under section 26-52-402. The statute did not define the term "machinery" and we construed it to mean something dynamic. Contrary to the statute involved in that case, the subsection of the statute applicable to the case at bar defines molds that determine the physical characteristics of the finished product as "machinery and equipment." Again, the forms at issue fit within the express language of the statute as "machinery and equipment."
The Department's third assignment is valid, but does not change the result of the case. In his letter opinion, the chancellor erroneously referred to section 26-52-402(c)(2)(B)(iv) as additional authority for his ruling in this case. The Director correctly points out that the subsection cited by the chancellor refers to an exemption for the machinery and equipment producing chemical catalysts and solutions, but not to the chemicals and solutions themselves. Thus, the cited subsection does not give an additional reason to support the chancellor's ruling. Even so, the result of the case is the same since we affirm the ruling on the ground that the taxpayer clearly comes within the mold and die exception as set out above.
In its final argument the Department contends that, even if the taxpayer's forms fit within the definition of "molds and dies," they still do not qualify for an exemption because the statute only exempts an initial purchase, or a complete replacement, of a machine or equipment. The Department's argument is correct in its assertion that only new or replacement machines or equipment are exempt, and that repairs are not exempt. See Ark.Code Ann. §§ 26-52-402(a)(1)(B) and (2)(A)-(B). Even so, the forms in this case clearly come within the language of the mold and die exception, whether they be classed as initial purchases or replacement molds.
In this same argument, the Department contends that the taxpayer is limited to an exemption for the initial mold, and not for replacement molds because Arkansas Gross Receipts Tax Regulation GR-56 requires sellers of molds and dies to collect a tax upon replacement molds and dies that are sold to be used with power units. The director contends that since these molds are not part of a machine they "fail to satisfy an initial requirement *337 for exemption" under the regulation. The argument is without merit for either of two reasons. First, the argument was not raised below, and we will not consider an argument for the first time on appeal. Second, if the Department is seeking to use its power of regulation to impose a requirement that a mold be a part of a power unit in order to be exempt, it has exceeded its authority. An administrative regulation cannot be contrary to a statute. See State v. Burnett, 200 Ark. 655, 140 S.W.2d 673 (1940). The statute provides an exemption for the molds.
Affirmed.
HAYS and BROWN, JJ., dissent.
HAYS, Justice, dissenting.
Admittedly, it is not entirely clear the legislature did not intend the words "molds and dies" to apply to the forms produced by C.B. Form Company (Company) and used by its sole customer, Amfuel, to produce fuel cells. But neither is it clear that the legislature did so intend and, unfortunately for the Company, that is the stringent test it must surpass to prevail in this litigation. In fact, in order to qualify for the exemption the Company must establish beyond a reasonable doubt that such was the intent of the legislature. Ragland v. General Tire and Rubber Co., 297 Ark. 394, 763 S.W.2d 70 (1989); Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976). This case, perhaps more than any other in recent memory, illustrates the maxim applicable to taxation exemption: "to doubt is to deny the exemption." Pledger v. Baldor International, Inc., 309 Ark. 30, 827 S.W.2d 646 (1992). I respectfully suggest the majority is resolving a doubtful issue against the taxing authority the State of Arkansasand strictly construing the exemption in favor of the Company, exactly the reverse of settled law.
In its haste to judgment the majority equates the words `mold' and `form' and effectively decides the case on that basis. The words may be used interchangeably in the industry, but that is not true of the Company, where the word `form' is consistently used to refer to the disposable device now in dispute and the word `mold' is used, in contradistinction, to refer to a reusable fiberglass structure utilized by the Company to produce the `form.' I submit that the reusable devicethe moldmeets the statutory test but that the nonreusable devicethe formdoes not.
If one looks no farther than the words "molds and dies that determine the physical characteristics of the finished product ..." the exemption might seem warranted. But to conclude that the form in this case is synonymous with `mold,' as used in the statute, greatly over simplifies a complex issue.
The key words of the statute are "machinery and equipment" and "molds and dies." Certainly the `form' in this case determines the physical characteristics of the finished productthe fuel cell. But is that conclusive of the issue being decided? I think not. I submit that a `mold,' used in conjunction with the word `die,' when strictly construed against the exemption, contemplates a device which has an ongoing function in the manufacture of a particular product, as opposed to a cardboard structure which, once used, is torn from the product piece by piece and discarded as unusable waste.
Admittedly, the statute does not require that molds and dies be permanent. But the two words are linked together in the conjunctive, suggesting a correlation, rather than in the disjunctive, and the word `die' plainly contemplates an industrial device which is reusable over an extended life. The word is defined as "any of various devices for cutting or forming materials in a press or a stamping or forging machine;" "a hollow device of steel," "a steel block or plate." In this context it is far more plausible that by using the words "molds and dies" (under the broader heading of "machinery and equipment") the legislature was referring to devices characteristically similar and having a useful life in the manufacturing process. Indeed, we have recognized that the language used in our statute requires a "continuing utility" in order for the exemption to attach. Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 118 (1987).
Other states have interpreted the language of similar tax exemption statutes accordingly: See, e.g., Midwestern Press, Inc. v. Commissioner *338 of Taxation, 295 Minn. 59, 203 N.W.2d 344 (1972) (lithographic plates custom made for particular printing jobs, usable for only a limited number of impressions and then scrapped, were not "machinery" for the purposes of tax exemption); Hasbro Industries, Inc. v. Norberg, R.I., 487 A.2d 124 (1985) (the "machinery" tax exemption not applicable to clay models); Great Western Sugar Co. v. U.S., 452 F.2d 1394 (1972) (metal plates with a cutting edge used to cut sugar beets into thin slices not entitled to tax exemption applicable to "machinery used in the manufacture of sugar"); Morgan County Feeders, Inc. v. McCormick, 836 P.2d 1051 (Colo.App. 1992) (goods used in business are "equipment" when they have identifiable units and a relatively long period of use.)
Being unable to eliminate all reasonable doubt that the legislature intended the exemption in this instance, I would reverse.
BROWN, J., joins in this dissent.
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139 N.J. 449 (1995)
655 A.2d 916
IN THE MATTER OF LAWRENCE G. MAGID, AN ATTORNEY AT LAW.
The Supreme Court of New Jersey.
Submitted January 18, 1995.
Decided March 31, 1995.
*450 Robyn M. Hill, Chief Counsel, submitted a recommendation for discipline on behalf of Disciplinary Review Board.
Maressa, Goldstein, Birsner, Patterson, Drinkwater & Oddo, attorneys for respondent.
PER CURIAM.
This disciplinary proceeding arose from a Motion for Final Discipline Based Upon a Criminal Conviction filed by the Office of Attorney Ethics (OAE) before the Disciplinary Review Board (DRB), seeking final discipline of Lawrence Magid, pursuant to *451 Rule 1:20-6(c)(2)(i). That motion was based on respondent's conviction of simple assault, in violation of N.J.S.A. 2C:12-1a(1).
The DRB found that respondent had engaged in unethical conduct. Four members recommended that respondent be publicly reprimanded. Two members would have imposed a private reprimand. Our independent review of the record leads us to accept the DRB's recommendation.
I
Respondent was admitted to the bar in 1969. At the time of the assault he had been an attorney with the Prosecutor's Office of Gloucester County for more than sixteen years. The DRB accurately sets forth the relevant facts in its Decision and Recommendation:
On September 28, 1993, a complaint was filed in Woodbury Heights Municipal Court charging respondent with the disorderly persons offense of assault, in violation of N.J.S.A. 2C:12-1a(1). The complaint charged respondent with attempting "to cause bodily injury to [K.P.], specifically by punching her in the head and face area causing a black eye, knocking her to the ground and kicking her in the neck, head, and lower back, causing other bruising". The incident in question occurred on the evening of September 25, 1993, at Badges, a private club in Woodbury Heights, frequented by law enforcement personnel. At the time of the incident, respondent was the First Assistant Prosecutor of Gloucester County. The victim, [K.P.] was also employed by the Gloucester County Prosecutor's Office and had been dating respondent for several months. As a result of this incident, respondent was discharged from his position in the prosecutor's office.
On December 7, 1993, respondent pleaded guilty to assaulting [K.P.]. The plea was taken by Superior Court Judge Robert W. Page, sitting as Municipal Court Judge for the Woodbury Heights Municipal Court.
At sentencing on February 7, 1993, Judge Page placed respondent on probation for a period of one year, fined him $250, and administered a $50 violent crime penalty. As conditions of probation, Judge Page required that respondent have no contact with [K.P.] and be responsible for any medical expenses incurred by her. He also directed respondent to continue treatment with his psychiatrist and remain drug-and alcohol-free during the course of his probation.
[Citations to Exhibits omitted].
II
A criminal conviction is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20-6(c)(1). The sole issue to be *452 determined is the extent of discipline to be imposed. R. 1:20-6(c)(2)(ii); In re Lunetta, 118 N.J. 443, 445, 572 A.2d 586 (1989); In re Goldberg, 105 N.J. 278, 280, 520 A.2d 1147 (1987); In re Tuso, 104 N.J. 59, 61, 514 A.2d 1311 (1986). In determining appropriate discipline, we consider the interests of the public, the bar, and the respondent. In re Litwin, 104 N.J. 362, 365, 517 A.2d 378 (1986); In re Mischlich, 60 N.J. 590, 593, 292 A.2d 23 (1977). The appropriate discipline depends on many factors, including the "nature and severity of the crime, whether the crime is related to the practice of law, and any mitigating factors such as respondent's reputation, his prior trustworthy conduct, and general good conduct." In re Lunetta, supra, 118 N.J. at 445, 446, 572 A.2d 586; In re Kushner, 101 N.J. 397, 400-01, 502 A.2d 32 (1986). Although we do not make an independent examination of the underlying facts to ascertain guilt, we do consider them relevant to the nature and extent of discipline to be imposed. In re Goldberg, supra, 105 N.J. at 280, 520 A.2d 1147; In re Rosen, 88 N.J. 1, 438 A.2d 316 (1981).
III
Respondent's conviction of the disorderly persons offense of simple assault is clear and convincing evidence that he has violated RPC 8.4(b) (by committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer). The primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar. We judge each case on its own facts. In re Kushner, supra, 101 N.J. at 400, 502 A.2d 32.
That respondent's misconduct did not directly involve the practice of law or a client is of little moment. It is well-established that the private conduct of attorneys may be the subject of public discipline. In re Bock, 128 N.J. 270, 274, 607 A.2d 1307 (1992). The reason for that rule is
not a desire to supervise the private lives of attorneys but rather that the character of a man is single and hence misconduct revealing a deficiency is not less *453 compelling because the attorney was not wearing his professional mantle at the time. Private misconduct and professional misconduct differ only in the intensity with which they reflect upon fitness at the bar. This is not to say that a court should view in some prissy way the personal affairs of its officers, but rather that if misbehavior persuades a man of normal sensibilities that the attorney lacks capacity to discharge his professional duties with honor and integrity, the public must be protected from him.
[In re Mattera, 34 N.J. 259, 264, 168 A.2d 38 (1961).]
IV
Both this case and In re Principato, 139 N.J. 456, 655 A.2d 920 (1995), also decided today, involve acts of domestic violence. The national spotlight is focused on domestic violence. Between three and four million women each year are battered by husbands, partners, and boyfriends. Domestic Violence: Not Just A Family Matter: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103rd Cong., 2nd Sess. (June 30, 1994) (statement of Senator Joseph Biden, Jr.). The New Jersey Legislature has found that
domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.
[N.J.S.A. 2C:25-18].
Based on those findings, the Legislature enacted one of the toughest domestic violence laws in the nation. N.J.S.A. 2C:25-17 to -33. During the last decade the number of complaints filed in New Jersey courts has increased from 13,842 in fiscal year 1984 to 55,639 in 1994, an increase of 302 percent. Dana Coleman, Domestic violence charges explode by 302% in decade, New Jersey Lawyer, Feb. 13, 1995, at 1 (citing the Administrative Office of the Courts).
*454 V
We have not yet addressed the appropriate discipline to be imposed on an attorney convicted of an act of domestic violence. There are few reported attorney ethics cases that involve acts of domestic violence. In re Nevill, 39 Cal.3d 729, 217 Cal. Rptr. 841, 704 P.2d 1332 (1985) (disbarring attorney who was convicted of voluntary manslaughter of his wife whom he shot ten times); In re Knight, 883 P.2d 1055 (Colo. 1994) (holding that attorney's conviction of third-degree assault of his wife that arose from three days of severe beatings warranted six-month suspension); In re Wallace, 837 P.2d 1223 (Colo. 1992) (imposing three-month suspension from practice of law on attorney who assaulted his girlfriend more than once and who on one occasion entered plea of guilty to assault); In re Walker, 597 N.E.2d 1271 (Ind. 1992) (imposing six-month suspension on part-time prosecutor for physically assaulting his female companion and her daughter); In re Runyon, 491 N.E.2d 189 (Ind. 1986) (disbarring attorney who forced entry into former wife's apartment, struck former wife with club, held her at gunpoint and who additionally was convicted of three felony counts of possession of unregistered firearms); Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Patterson, 369 N.W.2d 798 (Iowa 1985) (imposing three-month suspension from practice of law on attorney convicted of assault for severely beating his girlfriend for two hours while her four-year-old son was at home and aware of the assault).
Respondent's assault was an isolated incident on an otherwise unblemished professional record. Unlike Nevill, Knight and Wallace, there is no pattern of abusive behavior. And unlike Wallace, Runyon and Patterson, the actual assault lasted for a very short period of time. Moreover, the intense negative publicity has drastically affected respondent's career. As a result of this incident, respondent lost his long-term position in the Prosecutor's Office. Other mitigating factors also existed at the time of the assault, such as respondent's son's critical illness and his troubled *455 relationship with K.P. However, those mitigating factors neither excuse the attack nor obviate the necessity for public discipline.
Acts of violence are condemned in our society. As we stated in In re Principato, supra, 139 N.J. 456, 461, 655 A.2d 920, 922, "Unlike many other `victimless' disorderly persons offenses, domestic violence offenses always involve victims, often-times vulnerable and defenseless." The Legislature was particularly concerned that police and judicial personnel be trained "in the procedures and enforcement of this act, and about the social and psychological context in which domestic violence occurs." N.J.S.A. 2C:25-18. It is therefore important that victims of domestic violence understand that prosecutors, as members of law enforcement, are sensitive to their problems. As a prosecutor respondent must combat acts of domestic violence, not commit them. This "incident calls into question his ability to zealously prosecute or effectively work with the victims of such crimes." In re Walker, supra, 597 N.E.2d at 1271 (Ind. 1992).
Attorneys who hold public office are invested with a public trust and are thereby more visible to the public. Such attorneys are held to the highest of standards. "Respondent's conduct must be viewed from the perspective of an informed and concerned private citizens and be judged in the context of whether the image of the bar would be diminished if such conduct were not publicly disapproved." In re McLaughlin, 105 N.J. 457, 461, 522 A.2d 999 (1987) (citation omitted).
Respondent's conduct was a serious violation of RPC 8.4(b). But for the fact that we have not previously addressed the appropriate discipline to be imposed on an attorney who is convicted of an act of domestic violence, and that respondent did not engage in a pattern of abusive behavior, respondent's discipline would be greater than the public reprimand we hereby impose. We caution members of the bar, however, that the Court in the future will ordinarily suspend an attorney who is convicted of an act of domestic violence.
*456 Respondent shall reimburse the Disciplinary Oversight Committee for appropriate administrative costs.
For public reprimand Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN 7.
Opposed None.
ORDER
It is ORDERED that LAWRENCE MAGID of WOODBURY, who was admitted to the bar of this State in 1969, is hereby publicly reprimanded; and it is further
ORDERED that the entire record of this matter be made a permanent part of respondent's file as an attorney at law of this State; and it is further
ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs incurred in the prosecution of this matter.
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871 S.W.2d 815 (1994)
Eutemio VELA, Appellant,
v.
The STATE of Texas, Appellee.
No. B14-92-00908-CR.
Court of Appeals of Texas, Houston (14th Dist.).
January 27, 1994.
*816 Geraldo Acosta, Stanley G. Schneider, Houston, for appellant.
Alan Curry, Houston, for appellee.
Before SEARS and LEE, JJ., and MORSE, J., sitting by designation.
OPINION
ROBERT E. MORSE, Jr., Former Justice.
This is an appeal of a conviction for possession of cocaine. After his motion to suppress was denied, Appellant Vela pleaded no contest, and the trial court found him guilty. Vela now complains of the trial court's ruling on his motion to suppress. We affirm.
On Friday, February 7, 1992, at approximately 8:20 p.m., Officer Bobby Mathews saw a car stopped at a red light in Baytown. Officer Mathews saw that the car displayed a dealer's temporary cardboard tag (black-lettered on white) issued to a Houston dealership. The dealer's tag overlay the rear metal license plate. The dealership was located at least fifteen miles from Baytown. Officer Mathews stopped the car.
Appellant Vela was the sole occupant of the car. Officer Mathews asked Vela for his driver's license, and Vela produced it. Vela told Officer Mathews that he was not test-driving the car and that the car belonged to a friend. Vela did not give Officer Mathews the car's registration but did produce a sales receipt indicating that the car had been sold to a Francisco Abrego. There was a buyer's temporary cardboard tag (red-lettered on white), dated February 3, 1992, in the car, but the tag was not displayed.
Officer Mathews removed the dealer's tag and inspected the metal license plate underneath. He ran a registration check establishing that the car was properly registered and that there was no stolen report. Officer Mathews asked Vela for proof of auto liability insurance, which Vela could not produce. Officer Mathews confiscated the dealer's tag and placed Vela under arrest for failure to show proof of auto liability insurance and for displaying a "fictitious" license plate.
Another officer arrived and asked Vela for permission to search the car. Vela consented, but no incriminating evidence was found.
Police took Vela to the Baytown City Jail. There, they took $1,219.19 out of Vela's pockets. Three of the bills had a white powder on them. A jailer found a clear wrapper in Vela's wallet with a white powder on it. The wrapper and one of the bills field-tested positive for cocaine. A subsequent lab analysis reported trace amounts of cocaine on all of the three bills and the wrapper.
It was stipulated that the police had no arrest warrant for Vela.
Vela does not expressly set out a point of error. But from his briefed argument we take his complaint to be that the trial court erred in denying his motion to suppress evidence because the evidence was obtained through an illegal search and seizure. Vela argues that his initial stop and detention violated the Fourth Amendment of the United States Constitution and Chapter 14 of the Texas Code of Criminal Procedure. U.S. Const. amend. IV; TEX.CODE CRIM.PROC.ANN. art. 14.01 et seq. (Vernon 1977 & Supp.1994). He further complains that the subsequent warrantless search and seizure of evidence was without consent or probable cause.
In a motion to suppress hearing, the trial court is the sole trier of fact. State v. Williams, 812 S.W.2d 46, 48 (Tex.App. Corpus Christi 1991, no pet.). As such, the trial court is the judge of the credibility of the witnesses as well as the weight to be given their testimony. Id. On appeal, we determine whether the trial court's fact findings are supported by the record and do not engage in our own factual review. Id. If the findings are supported by the record, we do not disturb them; instead, we address only the question whether the trial court improperly applied the law to the facts. Id. As here, where no findings of fact are filed, we presume that the trial court made the findings necessary to support its ruling so long *817 as those implied findings are supported by the record.
The Initial Stop
To justify even a temporary detention, the officer must have specific articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the individual stopped for further investigation.... The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, information that tends to connect the detained person with the unusual activity, and some indication that the activity is related to a crime.
Moody v. State, 778 S.W.2d 108, 110 (Tex. App.Houston [14th Dist.] 1989, no pet.) (citations omitted).
According to Officer Mathews' testimony, the objective facts available to him were that (1) Vela's car displayed a temporary cardboard dealer's tag, (2) the time of his observation of Vela's car was several hours after a Friday workday had ended, (3) the dealer's tag was mounted in the rear license plate position, (4) in Mathews' experience, a dealer's tag was usually mounted in the rear window when a dealer was demonstrating a car to a prospective buyer, (5) the car did not display a buyer's temporary cardboard tag, (6) the car was at least 15 miles from Houston where the dealership on the dealer's tag was located, and (7) Mathews' was unaware of any capability to run a computer check on the numbers on the dealer's tag to determine if the car was stolen. While Officer Mathews did not articulate the specific statutory provisions for the offense or offenses he suspected were being committed, it is clear to us from his testimony, and the trial court could have found, that Officer Mathews was concerned with an offense resulting from the improper use of the temporary cardboard dealer's tag.
We find that there was support in the record for the trial court to have concluded that Officer Mathews' suspicion was reasonable based on implied findings that (1) Officer Mathews observed some activity out of the ordinary, i.e., a car displaying a temporary cardboard dealer's tag in an atypical, if not illegal, position on the car; long after the normal workday had ended; an unusually long distance from the car's ostensible home dealership; with no other vehicle identification number visible; (2) Vela was connected to the unusual activity as the driver of the car; and (3) Officer Mathews had some indication that the unusual activity was related to a crime, i.e., the violation by the dealer of Tex.Rev.Civ.Stat.Ann. art. 6686(a)(4) (Vernon Supp.1994) (improper use of dealer's temporary cardboard tag); the violation by Vela of Tex.Rev.Civ.Stat.Ann. art. 6675b-7 (Vernon Supp.1994) (display of a fictitious number plate or obscuring the metal number plate); or violation by Vela of TEX.REV.CIV. STAT.ANN. art. 6675a-3e, § 5(a) (Vernon Supp.1994) (failure to display two license number plates). We note that there was evidence in the record that Vela did not display a buyer's temporary cardboard tag that would have been valid for 20 days after purchase and would have made the car's distance from the dealership unremarkable.
Vela argues that his display of the dealer's tag was as consistent with innocent activity as criminal activity because there were multiple situations, other than a demonstration ride, where the display of the dealer's tag was proper. He directs us to TEX.REV.CIV. STAT.ANN. art. 6686(a)(4) (Vernon Supp.1994), which provides:
(4) Dealer's Temporary Cardboard Tags. Each dealer holding a current distinguishing number may issue temporary cardboard tags, which may only be used by such dealer or his employees for the following purposes:
(a) to demonstrate or cause to be demonstrated his unregistered vehicles to prospective buyers only for the purpose of sale....
(b) to convey or cause to be conveyed his unregistered vehicles from the dealer's place of business in one part of the State to his place of business in another part of the State, or from his place of business to a place to be repaired, reconditioned, or serviced, or from the point in this State where such vehicles are unloaded to his place of business, including the moving of such vehicles *818 from the State line to his place of business, or to convey such vehicles from one dealer's place of business to another dealer's place of business or from the point of purchase of such vehicles by the dealer to the dealer's place of business, or for the purpose of road testing....
Such tags shall not be used to operate vehicles for the personal use of a dealer or his employees. Whenever a dealer sells an unregistered vehicle to a retail purchaser, it shall be such dealer's responsibility to display the Buyer's Temporary Cardboard Tag thereon....
* * * * * *
But in Crockett v. State, 803 S.W.2d 308 (Tex.Crim.App.1991), the Court said: "[S]uch circumstances as will raise suspicion that illegal conduct is taking place need not be criminal in themselves. Rather, they may include any facts which in some measure render the likelihood of criminal conduct greater than it would otherwise be." Id. at 311. In our opinion, a car, 15 miles from its home dealership, displaying the dealer's temporary cardboard tag, late on a Friday evening, are sufficient circumstances to arouse a reasonable suspicion of a violation of art. 6686(a)(4), if not other offenses as well. This is so, even if it is ultimately determined that the display of the dealer's tag was proper. The level of suspicion necessary to justify a brief, investigatory stop does not rise to the level of probable cause necessary for a stop amounting to an arrest. See id.
Vela next asserts that a dealer's temporary cardboard tag may be placed over an existing license plate under certain circumstances. See 43 Tex.Admin.Code § 17.68(b). Therefore, he continues, there was nothing unusual about the dealer's tag not being displayed in the rear window of Vela's car. But Officer Mathews testified that the dealer's tag was usually in the rear window when a dealer was demonstrating a car, testimony that was not rebutted by the defense. Therefore, even if it was statutorily permissible to display a dealer's tag over the license plate in some circumstances, it was Mathews' experience that the tag was normally placed in the rear window. It was the exception to the normal practice that caught Officer Mathews' attention.
Vela further complains that there was nothing in the record to indicate that it was impossible for Officer Mathews to determine quickly by radio whether he could determine if a dealer's tag had been stolen or if a car was stolen bearing a dealer's tag. However, Vela cites no authority for the proposition that reasonable suspicion analysis requires that an investigating officer exhaust every alternative avenue of inquiry before making a brief investigative stop.
Finally, we find that Vela's reliance on Moody, supra, is misplaced. In Moody, this court held that a stop of a car was not based on a reasonable suspicion when:
[t]he only information possessed by the [arresting] officers was that the vehicle was listed as "suspicious" in some robberies. There is no indication of when or where these robberies occurred, no information connecting ... the Appellant to these robberies, and no information on which to base a reasonable belief that the automobile or its occupants were at this time, or at any time in the past, involved in any criminal activities or in possession of any contraband or fruits of any crime.
Moody, 778 S.W.2d at 110.
In the present case, Officer Mathews' suspicion was not based on second-hand information as in Moody. Officer Mathews personally observed the unusual activity giving rise to his suspicion. Officer Mathews had first-hand observations on which to base his suspicion of a possible violation of Texas law.
In sum, we hold that the initial stop and detention of Vela's car was a legal investigative stop.
The Arrest and Search
Vela argues that, even if his initial stop and detention were lawful, his subsequent arrest for failure to have proof of insurance or for displaying fictitious license plates was not based on probable cause.
TEX.REV.CIV.STAT.ANN. art. 6701h, § 1A(a) (Vernon Supp.1994) provides: "[N]o motor vehicle may be operated in this State unless a policy of automobile liability insurance in at *819 least the minimum amounts to provide evidence of financial responsibility under this Act is in effect to insure against potential losses which may arise out of the operation of that vehicle." Id. "An operator of a motor vehicle who fails or refuses to furnish, on request of a peace officer ..., [proof of financial responsibility] is presumed to have operated the vehicle in violation of Section 1A of this Act." Id. § 1B(b); see Sendejo v. State, 841 S.W.2d 856, 859 (Tex.App.Corpus Christi 1992, no pet.) (officer stopping defendant on traffic violation is within authority to ask for proof of liability insurance). "A person commits an offense if the person operates a motor vehicle in violation of Section 1A of this Act." Id. § 1C(a)(1). "A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view." Tex.Code Crim.Proc.Ann. art. 14.01(b) (Vernon 1977)
During Vela's brief investigative detention and routine questioning at the roadside, Vela admitted to Officer Mathews that he did not have proof of liability insurance. Vela was therefore in presumed violation of art. 6701h, § 1A(a) and subject to arrest.
Once under arrest and taken to jail, the search of Vela's person was justified as a search incident to his arrest or as a routine inventory search. See Rogers v. State, 774 S.W.2d 247, 264 (Tex.Crim.App.1989), cert. denied, 493 U.S. 984, 110 S. Ct. 519, 107 L. Ed. 2d 520 (1989) ("When booked into a detention facility, [detainees] may be thoroughly searched without a warrant to make an inventory of their belongings."). It was during this search that police observed the white powder on some of Vela's money and on the clear wrapper.
Even assuming that Vela's arrest for failure to show proof of insurance was not legal, his arrest for improper display of motor vehicle identification was. Vela argues that there was no probable cause to arrest him for displaying "fictitious" license plates. He contends that art. 6686(a)(4), which regulates dealers and their agents in the use of dealers' temporary cardboard tags, places upon the dealer, not the customer, the duty of replacing the dealer's tag with a buyer's temporary cardboard tag. Vela maintains that only a dealer or his agent can violate the Act. Vela further argues that there was no evidence that the dealer's tag was, in fact, "fictitious." At most, he complains, the tag was a valid temporary tag being misused.
Vela was not operating the car as a dealer, employee of a dealer, or prospective buyer for one of the permissible uses provided in art. 6686(a)(4). Therefore, Vela's display of a temporary cardboard dealer's tag constituted the use of an incorrect or "fictitious" license plate in violation of Tex.Rev.Civ.Stat.Ann. art. 6675b-7 (Vernon Supp.1994), which provides:
No person shall attach to or display on any motor vehicle any number plate or seal assigned to a different motor vehicle or assigned to it under any other motor vehicle law other than by the State Highway Department, or any registration seal other that assigned for the current year, or a homemade or fictitious number plate or seal. All letters, numbers and other identification marks shall be kept clear and distinct and free from grease or other blurring matter so that they may be plainly seen at all times during daylight....
We conclude that the trial court could have found that Officer Mathews had probable cause to believe that the cardboard dealer's tag on Vela's car was being used as a fictitious license plate for purposes of art. 6675b-7 because it was being displayed under inappropriate circumstances and in lieu of the display of the proper buyer's tag or metal license plates.
Moreover, the trial court could have found probable cause that Vela was operating the car in violation of Tex.Rev.Civ.Stat.Ann. art. 6675a-3e, § 5(a) (Vernon Supp.1994), which provides:
A person commits an offense if the person operates a passenger car or a commercial motor vehicle on a public highway that does not display two license number plates, one at the front and one at the rear, that have been assigned by the department to the vehicle for the current registration period or have been validated by a symbol, *820 tab, or other device for the current registration period. Id.
The car's rear license plate was obscured by the cardboard dealer's tag. Therefore, the metal plate was not "displayed" for the purposes of art. 6675a-3e, § 5(a).
We hold that the evidence would support the trial court's implied finding that the police had probable cause that Vela was in violation of art. 6675b-7 or art. 6675a-3e, § 5(a) and so was subject to arrest under Tex.Code Crim.Proc.Ann. art. 14.01(b).
In conclusion, we find that the trial court did not err in denying Vela's motion to suppress. The initial stop, temporary detention, arrest, and search of Vela were legal. We therefore overrule Vela's sole point of error and affirm the judgment below.
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502 F. Supp. 259 (1980)
Isabel Morel de LETELIER et al., Plaintiffs,
v.
The REPUBLIC OF CHILE et al., Defendants.
Civ. A. No. 78-1477.
United States District Court, District of Columbia.
November 5, 1980.
*260 Michael E. Tigar, Samuel J. Buffone, Lynne Bernabei, Tigar & Buffone, P. C., Washington, D. C., for plaintiffs.
William J. Garber, Washington, D. C., for Ignacio Novo Sampol.
Barry W. Levine, Washington, D. C., for Michael Townley for limited purpose of issue of contempt.
MEMORANDUM OPINION
JOYCE HENS GREEN, District Judge.
This action is before the Court for a final determination relevant to the attempt of plaintiffs Isabel, Christian, Jose, Francisco, and Juan Pablo Letelier, and Michael Maggio, respectively the widow, sons, and personal representative of Orlando Letelier, and Michael Moffitt and Murray and Hilda Karpen, respectively the widower-personal representative and the parents of Ronni Karpen Moffitt, to obtain judgments by default against defendants Republic of Chile, Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, Guillermo Novo Sampol, and Ignacio Novo Sampol, for their alleged culpability for the bombing deaths of former Chilean ambassador Letelier and Ronni Moffitt in September 1976 in Washington, D.C. After careful consideration of the entire record of this case, including the testimony and documentary evidence presented at the June 20, 1980 hearing regarding several of the pending applications for judgments by default, it is apparent plaintiffs have established their right to relief as against all but one of these defendants and thus are entitled to judgments by default in the amounts hereinafter set forth.
Plaintiffs, either citizens of the states of Maryland or New Jersey, or of the District of Columbia, or of the Republic of Chile, brought this suit asserting various tortious causes of action[1] and seeking recompense, pursuant to those statutory enactments governing the survival of actions, D.C.Code § 12-101 (Supp. VII 1980), and wrongful death, id. § 16-2701 (1973), from those they alleged were involved in the deaths of Orlando Letelier and Ronni Moffitt, both of whom died as a result of the detonation of an explosive device under the driver's seat of Orlando Letelier's automobile as it rounded Sheridan Circle, N.W., in the District of Columbia on September 21, 1976. The named defendants to the action are either a foreign state, or citizens of a foreign state, or citizens of a state other than the states of Maryland or New Jersey or of the District of Columbia.
Filed on August 23, 1978, the first amended complaint in this action was served by Deputy United States Marshals upon Alvin Ross Diaz (Ross), Guillermo Novo Sampol (Guillermo Novo), and Ignacio Novo Sampol (Ignacio Novo) on August 23, 1978, and on defendant Michael Vernon Townley two days later. Service was attempted upon defendants Juan Manuel *261 Contreras Sepulveda (Contreras), Pedro Espinoza Bravo (Espinoza), and Armando Fernandez Larios (Fernandez) in Chile by registered mail, return receipt requested, pursuant to Federal Rule of Civil Procedure 4(i)(1)(D). On September 7, 1978, the return receipts were filed with the Court upon which it was indicated that copies of the first amended complaint were received on behalf of defendants Contreras, Espinoza, and Fernandez on August 29, 1978. Upon their failure to answer, defaults were taken against defendants Townley, Ross, and Ignacio Novo on September 20, 1978, while a default was entered against defendant Guillermo Novo on October 24, 1978.
As to defendant Republic of Chile, it was served with the first amended complaint on November 17, 1978, pursuant to the procedures set forth at 28 U.S.C. § 1608(a)(4). Upon its failure to answer, a default was entered against the Chilean Republic by the Honorable John H. Pratt on May 2, 1979. Because questions were raised about the subject matter jurisdiction of the Court to entertain this suit against the Republic of Chile under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1601-1610 (1976), after receiving a memorandum on that subject from plaintiffs on March 11, 1980, a memorandum opinion was filed in which it was held that such jurisdiction did indeed lie. Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C.1980).
In June 1980, a hearing was held at which plaintiffs were afforded an opportunity to satisfy the Court that judgments by default should be granted in their favor and against the Republic of Chile, pursuant to 28 U.S.C. § 1608(e) (1976), and individual defendants Townley, Ross, Guillermo Novo, and Ignacio Novo, pursuant to Federal Rule of Civil Procedure 55(b)(2). Subsequently, on September 22, 1980, service of the first amended complaint was again obtained upon defendants Contreras and Fernandez in Chile, this time by letters rogatory in accord with Rule 4(i)(1)(B). Defaults then were taken against defendants Contreras, Espinoza, and Fernandez on October 23, 1980, making this action ripe for disposition as to all defendants.[2]
In seeking to establish their claims to relief relating to the tragic deaths of Orlando Letelier and Ronni Moffitt, the evidence presented by plaintiffs which details the bombing incident is, in the main, derived from the testimony of defendant Michael Vernon Townley under oath at the criminal trial of defendants Ross, Ignacio Novo, and Guillermo Novo in January 1979.[3] As related *262 by Townley, an American citizen and a long-time Chilean resident, he first became involved in the events that culminated in the Letelier and Moffitt killings sometime in late June or early July 1976. At that time he was contacted by defendant Armando Fernandez Larios, then a lieutenant in the Chilean Army and an operative of the Chilean intelligence service, the Direccion de Intelligencia Nacionale (DINA) (now known as the Centro Nacionale de Informaciones (CNI)), to arrange a meeting between Townley, then a civilian contract employee of DINA, and defendant Pedro Espinoza Bravo, then a lieutenant colonel in the Chilean Army and Director of Operations of DINA. At the meeting, Colonel Espinoza asked Townley whether he would be available for a special DINA operation outside Chile in the near future. Townley indicated that while he was reluctant to leave the country because of his wife's health, he would undertake such a mission if ordered to do so. At another meeting several weeks later, Espinoza informed Townley that the mission would involve travel to the United States for the purpose of assassinating Orlando Letelier. Entry into the United States, according to Espinoza, was to be accomplished with Paraguayan documents and, to the extent necessary, Fernandez and Townley were to use members of the anti-Castro Cuban exile group, the Cuban Nationalist Movement (CNM), to accomplish the murder.
In July 1976, Fernandez and Townley went to Paraguay, via Argentina, and, with the help of Paraguayan authorities, obtained Paraguayan passports under assumed names which, in turn, they used to obtain visas to the United States. Because of the apparent uneasiness of DINA officials in Chile over the nearly two weeks it took to obtain the passports and visas, the trip of Fernandez and Townley to the United States using those documents was cancelled and they were ordered to return to Chile, which they did.
In August 1976, Espinoza again contacted Townley to inform him that the Letelier mission was still scheduled and that Fernandez was already in the United States surveilling Letelier to record his movements and daily patterns. Townley was instructed, as he had been in the earlier meetings, to make the killing appear accidental or a suicide if possible, but that other means, including an explosive or a shooting, could be utilized to eliminate Letelier. Townley also was told that he was to be out of the United States before the assassination took place.
Townley departed Santiago, Chile, on September 8, 1976, and arrived at New York's John F. Kennedy International Airport on September 9, traveling under the assumed name of Hans Peterson Silva. Uncontradicted testimony demonstrated that facilities and personnel of LAN Chile Airlines, a foreign air carrier owned and operated by the government of Chile, were used by Townley in connection with the preparation and carrying out of the assassination of Orlando Letelier and Ronni Moffitt. At Kennedy Airport he met Fernandez and was given a sketch of Letelier's residence and place of employment as well as written information describing the Leteliers' automobiles. Fernandez also gave Townley a verbal briefing on Letelier's daily movements. The two DINA agents then parted and Fernandez returned to Chile.
From Kennedy Airport Townley drove a rental car into New Jersey and checked into a hotel under the name of Hans Peterson. He made contact by telephone with CNM member Virgilio Paz Romero and scheduled *263 a supper meeting. At the dinner, Townley made further arrangements to meet with defendant Guillermo Novo Sampol, a CNM leader. On September 10, 1976, he met for lunch with Guillermo Novo and Jose Dionisio Suarez Esquivel. At this meeting, he outlined his DINA mission to assassinate Letelier and sought CNM's help. Guillermo Novo declined to commit CNM at that time. Subsequently, however, after another gathering at which the assassination plan was discussed in the presence of several individuals identified as directors of CNM, including Guillermo Novo, Suarez, and defendant Alvin Ross Diaz, Guillermo Novo and Suarez informed Townley that it had been decided that CNM would assist DINA in murdering Letelier. It was agreed that Paz and Townley would proceed to Washington, D.C., to conduct corroborative surveillance and that Suarez would join them several days later to assist in the assassination. It was also decided that the attempt would be made by installing a bomb under Letelier's automobile and detonating it with a remote control device.
On September 15, 1976, Townley went with Paz to the Union City, New Jersey, headquarters of CNM where they received from Guillermo Novo and Suarez a paging device modified for use as a remote control detonator and a shopping bag containing three kilograms of dynamite and one-half pound of plastic explosive. Paz and Townley then proceeded by car to Washington, arriving in the early morning hours of Thursday, September 16, 1976. Once in Washington, they first drove to the vicinity of Orlando Letelier's home to check that general area. They then registered in a motel in northwest Washington. The remainder of Thursday and all day on Friday, September 17, was spent verifying and supplementing the information supplied by Fernandez concerning Letelier's movements and habits; at one point they even trailed Letelier by car from his home to his office at the Institute for Policy Studies. On Friday they also went to a department store in upper northwest Washington and purchased two aluminum baking pans and several rolls of electrical tape to be used in building a bomb and a pair of rubber gloves to avoid leaving fingerprints on their explosive handiwork. Suarez arrived from New Jersey on the morning of Saturday, September 18, 1976, to aid in the preparations, and after Paz and Townley moved to a different motel in northeast Washington across from Suarez's motel, the three made a shopping trip to an electronics store in downtown Washington where they purchased a battery pack and a set of tools to be used for constructing the bomb.
On the evening of Saturday, September 18, 1976, Townley built the bomb intended for the assassination attempt in the motel room he shared with Paz. Paz, Suarez, and Townley then drove to the Letelier house to place the bomb on Orlando Letelier's car. Although it was planned that Paz and Suarez were to take responsibility for detonation of the device on Monday, September 20, they insisted that Townley, as a DINA agent, attach it. After several false starts, Townley succeeded in planting the bomb beneath Letelier's car, which was parked in the driveway of the Letelier home.
On the morning of Sunday, September 19, 1976, Townley flew from Washington to Newark, New Jersey, and was met by defendant Ross. Over breakfast, Townley gave Ross the full details of his activities in Washington. Ross then drove Townley to Guillermo Novo's residence where Townley described for Novo his actions in Washington.
Later that same day, Townley went to Kennedy Airport to catch a flight to Miami, Florida. While there, he attempted to "fix" the records showing the entry of Hans Peterson Silva into the United States. This was done by surreptitiously mixing the Immigration and Naturalization Service's Form I-94, issued to Townley under the name of Silva upon his arrival in the United States, with a pile of I-94's collected from passengers departing for Spain on a Spanish airliner. Because his past experience indicated that the I-94's collected at ticket counters were turned over to immigration officials by airline personnel without any effort to check them against the passengers *264 listed in the flight manifest, Townley hoped in this way to insure that immigration records would show Silva left the country prior to any attempt to assassinate Letelier. Townley then took a flight from Kennedy Airport to Miami, arriving either in the late evening of September 19 or in the early morning hours of Monday, September 20, 1976.
On Monday, Townley went to visit his parents who lived in the Miami area and stayed until Tuesday, September 21, 1976. Having received no word of any assassination attempt, at approximately 7:00 a. m. on Tuesday morning Townley contacted Paz by telephone at his New Jersey residence for the purpose of ascertaining what had happened in Washington. Paz, however, was very curt, chiding Townley for using the telephone for sensitive conversations before immediately hanging up. Later that day, Townley contacted defendant Ignacio Novo Sampol, the brother of Guillermo Novo and a CNM member who lived in Miami, to arrange a meeting. Ignacio Novo advised Townley to listen to the radio because something big had happened in Washington. Later that day, at a meeting with Ignacio Novo, Townley described in detail his activities with Paz and Suarez in Washington.
Townley, traveling under the name Kenneth Enyart, returned to Chile on a Chilean airline flight that left Miami on the evening of Wednesday, September 22, 1976.
Within a few days after his return to Chile, Townley reported to Colonel Espinoza and briefed him on the results of the Letelier mission. Also shortly after the Letelier mission, Townley made a telephone call to Paz in the United States, who explained to Townley that the bomb had not been detonated on Monday, September 20, 1976, because of a malfunction and, as a consequence, CNM had removed the bomb from Letelier's car, fixed it, and then reinstalled it.
In early 1978, developments in the investigation of the Letelier assassination in the United States prompted Guillermo Novo, Virgilio Paz, and Alvin Ross to contact defendant Townley by telephone at different times to request a loan of $25,000 in order to relocate those CNM members they felt were under government scrutiny. Townley relayed this request to defendant General Manuel Contreras Sepulveda, who was director of DINA at the time of the assassination. Contreras indicated to Townley, however, that because he was no longer director of DINA, he did not have access to funds. Contreras and Townley also met in March 1978 to discuss covering up the trips of Townley and Fernandez to Paraguay to obtain passports and visas and to the United States to plan and execute the Letelier assassination. Contreras first suggested that Townley flee Chile to avoid questioning, but when this request was rejected, he suggested that Townley and Fernandez admit that they went to Paraguay on a national security mission, the nature of which they would refuse to disclose, and that neither had gone to the United States. Townley, Fernandez, and Contreras then met together and it was agreed, as to the Paraguay trip, that they would tell the truth about that trip, with the exception of its purpose as part of any plan to kill Letelier.
Finally, Townley testified that while he received his orders for the mission from Colonel Espinoza, ultimately only General Contreras, as director of DINA, could have authorized the undertaking of the mission outside of Chile and the issuance of the passport in the name of Hans Peterson Silva used by Townley to gain admittance to the United States.
Further detailing the events surrounding the Letelier assassination and corroborating Townley's sworn testimony were a number of witnesses and various exhibits offered by plaintiffs.
According to the testimony of plaintiff Isabel Letelier, following the election of Salvador Allende as president of Chile in 1970, Orlando Letelier served variously as Ambassador of the Republic of Chile in the United States, Minister of Foreign Relations, Minister of Interior, and finally Minister of Defense. When the military junta headed by General Augusto Pinochet came *265 to power in September 1973, Letelier was imprisoned until approximately February of 1974. At that time, he was expelled from Chile and after a stay in Venezuela made his way to the United States in January 1975. While in the United States, he served as Director of the Transnational Program at the Institute for Policy Studies in Washington, D.C. During 1975 and 1976 up until the time of his death, he not only worked at the Institute, but also taught at a local university and engaged in various political activities, which included speaking and writing in opposition to the Pinochet government.
As to the events of the day of September 21, 1976, plaintiff Michael Moffitt testified that because of trouble with their car, he and Ronni Moffitt were riding with Orlando Letelier that morning to the Institute where they were all employed. Orlando Letelier was driving, while Ronni Moffitt was in the front passenger seat and Michael Moffitt was in the rear behind his wife. As they rounded Sheridan Circle, an explosion erupted under the car, lifting it off the ground. When the car came to a halt, Michael Moffitt was able to escape from the rear end of the car by crawling out a back window. He saw his wife stumbling away from the car and assuming that she was all right, went to assist Letelier. He found Letelier still in the driver's seat, and despite the fact that much of his lower torso was blown away, Letelier's head was rolling back and forth, his eyes were moving slightly, and he attempted to mutter several things, which were unintelligible. Michael Moffitt tried to remove Letelier from the car but was unable to do so. He then noticed that his wife had disappeared from view and as the police began to arrive he left Letelier and went across the street where he found Ronni Moffitt lying on the ground, being attended to by a doctor who happened to be driving by at the time of the explosion. Ronni Moffitt was bleeding heavily from her mouth.
Both Ronni Moffitt and Orlando Letelier were taken to the hospital shortly thereafter. While Michael Moffitt estimated that the bomb was detonated at approximately 9:30 a.m., the reports of the Medical Examiner's office set the time of death of Orlando Letelier at 9:50 a.m. and the time of death of Ronni Moffitt at 10:37 a.m. The cause of death for both was listed as explosion-incurred injuries.
Finally, appearing on behalf of plaintiffs as an expert on Chilean law was Professor Eugenio Velasco, a former director of the School of Law at the National University of Chile who is now teaching at several American law schools following his exile from Chile in 1976. Testifying about the content and meaning of the statutory provisions that established DINA, Decree Law No. 521 of June 18, 1974, and Decree Law No. 527 of June 26, 1974, Professor Velasco declared that DINA, as characterized by article 1 of Decree Law No. 521, was a military organism that depended directly on the ruling military junta headed by President Augusto Pinochet. The relationship of DINA to the junta was more fully explained, according to Professor Velasco, by Decree Law No. 527, which placed DINA directly under President Pinochet by reason of its provisions granting Pinochet all executive power. Further, as it relates to the role of the Director General of DINA, who, until its dissolution in 1977, was Manuel Contreras Sepulveda, Professor Velasco found that Decree Law No. 521 placed upon the Director General responsibility for and direct control of the most important functions of DINA. As to the status of DINA's successor, the Centro Nacionale de Informaciones, by Decree Law No. 1878 of August 12, 1977, it was established as the legal successor to DINA and took over all of DINA's assets, liabilities, responsibilities, and rights. Finally, Professor Velasco testified that on the basis of the statutory attributes given DINA and the director general, only General Contreras could have ordered the assassination of Orlando Letelier.
From the various filings of the plaintiffs and the totality of the evidence presented to the Court, the following legal conclusions are in order:
*266 1. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1330, 1331, 1332(a)(3), 1343(1)-(2), 1350 and the doctrines of pendent and ancillary jurisdiction.
2. Pursuant to the dictates of 28 U.S.C. § 1608(e), plaintiffs have produced satisfactory evidence to establish that on or about September 21, 1976, employees of the Republic of Chile, acting within the scope of their employment and at the direction of Chilean officials who were acting within the scope of their office, committed tortious acts of assault and battery and negligent transportation and detonation of explosives that were the proximate cause of the deaths of Orlando Letelier and Ronni Moffitt. Accordingly, a judgment by default as to these claims will be entered in favor of plaintiffs and against the Republic of Chile.
3. The issuance of a judgment by default against defendants Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol is proper as to plaintiffs' claims of conspiracy to deprive Orlando Letelier and Ronni Moffitt of their constitutional rights in violation of 42 U.S.C. § 1985, assault and battery, negligent transportation and detonation of explosives, tortious actions in violation of international law, and tortious assault upon Orlando Letelier, an internationally protected person pursuant to 18 U.S.C. § 1116, which was the proximate cause of the deaths of Letelier and Ronni Moffitt.[4]
Plaintiffs have established their rights to relief by evidence satisfactory to the Court.
Judgments by default being proper, damages will be assessed against the defendants. Suit was instituted in this instance under both the District of Columbia statute governing survival of actions, D.C. Code § 12-101 (Supp. VII 1980), and the legislative enactment allowing wrongful death actions, id. § 16-2701 (1973). On the basis of the evidence presented on June 20, 1980, as to the pain and suffering of Orlando Letelier and Ronni Moffitt as well as their estimated life values, that is, the loss of support resulting from their deaths, the following allocation of damages is made:[5]
I. With respect to Orlando Letelier: a) under the survival statute, D.C.Code § 12-101, and 28 U.S.C. § 1606, 1) judgment will be entered in favor of plaintiffs Isabel, Christian, Jose, Francisco, and Juan Pablo Letelier and against defendants Republic of Chile, Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol, jointly and severally, in the amount of $30,000 to compensate for pain and suffering; and 2) judgment will be entered in favor of plaintiffs Isabel, Christian, Jose, Francisco, and Juan Pablo Letelier and against defendants Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol, jointly and severally, in the amount of $1,000,000 as an award of punitive damages; and b) under the wrongful death statute, D.C.Code § 16-2701 and 28 U.S.C. § 1606, judgment will be entered in favor of plaintiff Michael Maggio, as the personal representative of Orlando Letelier, and *267 against defendants Republic of Chile, Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol, jointly and severally, in the amount of $1,526,479.
II. With respect to Ronni Karpen Moffitt: a) under the survival statute, D.C. Code § 12-101 and 28 U.S.C. § 1606, 1) the judgment will be entered in favor of plaintiffs Michael Moffitt and Hilda and Murray Karpen and against defendants the Republic of Chile, Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol, jointly and severally, in the amount of $80,000 to compensate for pain and suffering; and 2) judgment will be entered in favor of plaintiffs Michael Moffitt and Hilda and Murray Karpen and against Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol, jointly and severally, in the amount of $1,000,000 as an award of punitive damages; and b) under the wrongful death statute, D.C.Code § 16-2701 and 28 U.S.C. § 1606, judgment is entered in favor of plaintiff Michael Moffitt, as the personal representative of Ronni Karpen Moffitt, and against defendants Republic of Chile, Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol, jointly and severally, in the amount of $916,096.
Unquestionably, there has been grave loss to Michael Moffitt, the widower of Ronni Moffitt, who has also sued the defendants in his individual capacity. Not only was he the other passenger in the vehicle in which the assassinations occurred, but his testimony vividly described the ordeal to his own physical and emotional person as a proximate result of the events of September 21, 1976, including subsequent psychiatric therapy. Nonetheless, no judgment for damages can be entered in his favor other than as to pain and suffering since the record is barren as to any specific information concerning the psychiatric therapy other than vague references thereto. The expenses accordingly incurred and expected to incur in the future, if at all, are only speculative. As to his pain and suffering, proximately resulting from the defendants' acts, judgment will be entered in favor of the plaintiff, Michael Moffitt, individually and against defendants Republic of Chile, Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol, jointly and severally, in the amount of $400,000.
Counsel for plaintiffs have moved the Court for an award of attorneys' fees and expenses noting by affidavit the hourly investments and rates of the five attorneys who have prepared, filed and litigated this action, as well as the out-of-pocket expenses actually incurred in connection with this cause for which reimbursement is sought.
The lawsuit has involved intricate proceedings, reliance on a relatively new statute devoid of interpretation relevant to the instant matter, proposed default against a foreign nation, and studied application to international document exchange. The unique and complex investigation/research, conducted necessarily in an atmosphere charged with special sensitivity to diplomatic mores, unceasingly intensified the tragic circumstances compelling this litigation.
The 1,417 hours were logged primarily by associates of the firm with varying degrees of experience and the firm itself has, in concert with Copeland v. Marshall, No. 77-1351 (D.C.Cir. Sept. 2, 1980) (en banc) discounted their hours by twenty percent to offset "learning" experience and to reflect, accordingly, 1,233.75 hours invested in these proceedings.
The zealous application of counsel who were unswervingly committed to their compassionate pursuit on behalf of the plaintiffs must be commended highly. They exhibited substantial legal skills in this novel litigation, slicing through obfuscation to *268 achieve a conclusion of substantial benefit to their clients. An award of compensable and reasonable counsel fees in such a situation is not only appropriate but mandated. It is of interest to note that plaintiffs' counsel, who devote a substantial amount of their time to pro bono publico matters, will assign any judgment for attorneys' fees to the Letelier-Moffitt Human Rights Fund, a non-profit organization.
Accordingly, pursuant to 42 U.S.C. § 1988, defendants Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, Armando Fernandez Larios, Michael Vernon Townley, Alvin Ross Diaz, and Guillermo Novo Sampol are held liable jointly and severally for the fees and expenses of plaintiffs' counsel in the amounts of $100,000.00 for counsel fees and $10,279.97 for reimbursement of expenses.
NOTES
[1] In this complaint plaintiffs have asserted the following causes of action: 1) conspiracy to deprive Orlando Letelier and Ronni Moffitt of their constitutional rights in violation of 42 U.S.C. § 1985 (1976); 2) assault and battery; 3) negligent transportation and detonation of explosives; 4) tortious activities in violation of the law of nations resulting in death to Orlando Letelier and Ronni Moffitt; and 5) tortious assault upon Orlando Letelier, an internationally protected person pursuant to 18 U.S.C. § 1116 (1976), that was the proximate cause of his death and the death of Ronni Moffitt.
[2] Also named as defendants in the first amended complaint to this action were the Centro Nacional de Informaciones (CNI) (formerly Direccion de Intelligencia Nacionale (DINA)), Virgilio Paz Romero, Jose Dionisio Suarez Esquivel, and John Does One through Ten. For various reasons and with plaintiffs' acquiescence all of these defendants have been dismissed from this action, without prejudice.
[3] Following a five-week trial by jury in early 1979, defendants Ross and Guillermo Novo were convicted of various charges relating to the deaths of Orlando Letelier and Ronni Moffitt, including first degree murder, D.C.Code § 22-2401 (1973), murder of a foreign official, 18 U.S.C. §§ 1111, 1116 (1976), and conspiracy to murder a foreign official, id. § 1117, while Ignacio Novo was convicted of making false declarations to the grand jury, id. § 1623, and misprison of a felony, id. § 4. All three were sentenced to substantial prison terms. Recently, however, the convictions of all three defendants were overturned by the United States Court of Appeals for the District of Columbia Circuit. United States v. Sampol, 636 F.2d 621 (D.C.Cir. 1980). The convictions of Ross and Guillermo Novo were reversed because of the introduction of the testimony of government informants who were inmates in the same cell-blocks with Guillermo Novo and Ross while they were imprisoned awaiting trial, id. at 630-642; Ignacio Novo's conviction was reversed because of the failure of the trial court to grant him a separate trial on the charges against him, id. at 642-651.
As evidence in support of their applications for default judgments, the plaintiffs introduced approximately 160 exhibits, many of which were copies of exhibits introduced at the trial of the Novos and Ross, but none of these were related to the matters cited by the Court of Appeals as compelling the reversal of the three convictions. Also introduced were copies of the sworn testimony of defendant Michael Vernon Townley given at the criminal trial. Although defendant Townley currently is serving a criminal sentence for his involvement in the Letelier and Moffitt killings at an undisclosed location under the aegis of the United States Marshals' Witness Protection Program, because of the clear and present danger to Mr. Townley and to other persons that would have been precipitated by bringing him before the Court, he has been considered unavailable. Consequently his sworn testimony during the criminal proceedings instituted against the Novos and Ross, which was not in any way questioned by the Court of Appeals or involved as a basis for the reversal of the convictions, has been considered in determining the propriety of the entry of the judgments by default in this case. Fed.R.Evid. 804(a)(5). The testimony of the government informers that the Court of Appeals found to have been improperly admitted at the criminal trial has not been considered by this Court.
[4] Although plaintiffs have sought a default judgment against defendant Ignacio Novo Sampol as well, it is apparent from the evidence presented to the Court that his knowledge of and involvement in the murders occurred only after they had been accomplished, making any finding of civil liability inappropriate as it relates to Ignacio Novo. Accordingly, the Court will vacate the default entered against that defendant and dismiss him from this action.
[5] Although the June 20, 1980, hearing at which evidence relevant to damages was presented by plaintiffs was before the entry of defaults against defendants Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, and Armando Fernandez Larios, they have been sued in this action as joint tortfeasors along with the other parties against whom defaults were pending on June 20, 1980. Plaintiffs have requested that the evidence adduced at that June hearing be applied to the question of damages against Contreras, Espinoza, and Fernandez and will be so considered without holding a separate, duplicative hearing. See Order of October 23, 1980.
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237 Md. 362 (1965)
206 A.2d 553
COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY, ET AL.
v.
COLE
[No. 120, September Term, 1964.]
Court of Appeals of Maryland.
Decided February 2, 1965.
The cause was argued before HAMMOND, HORNEY, MARBURY and BARNES, JJ., and DIGGES, C.J., of the Seventh Judicial Circuit, specially assigned.
John S. Hebb, III, with whom was Robert L. Karwacki on the brief, for appellants.
Robert P. Conrad, with whom was John W. Pfeifer on the brief, for appellee.
DIGGES, J., by special assignment, delivered the opinion of the Court.
The County Commissioners of Anne Arundel County, employer, and its workmen's compensation insurer, appeal from a judgment of the Circuit Court for Anne Arundel County affirming an award made by the Workmen's Compensation Commission *364 (the Commission) in favor of the appellee, Donald Reese Cole. The case was heard by the court, sitting without a jury, partly on the evidence presented before the Commission, and partly on testimony taken before the Court. The question is whether or not there is legally sufficient evidence to show that the employee sustained an accidental injury arising out of and in the course of his employment. Both the Commission and the lower court concluded that the injury sustained by the appellee arose out of and in the course of his employment.
The facts may be summarized as follows: On March 13, 1963, the appellee was one of three full-time enginemen employed by the Herald Harbor Volunteer Fire Department, but paid by the County Commissioners of Anne Arundel County. On that date, the appellee was not scheduled for regular duty because of a system whereby each of the three enginemen was on duty for 24 hours and off 48 hours. His duties, however, as a paid engineman required, in addition to the operation of the fire apparatus at fires, that he help maintain and care for the department's equipment and building. In connection with his building maintenance duties, appellee had been assigned the task of painting the sleeping quarters used by the paid enginemen. Appellee had been working on this project for several weeks. On March 13, normally his day off, at the request of the department chief, he arrived at the fire department building at about 1:40 p.m., intending to continue the painting of the quarters so that the project would be completed in time for the membership meeting that evening. Upon entering the building the appellee met Darr, the paid engineman on duty that day, and Emory Merle Elswick, the unpaid fire chief. Elswick was regularly employed as a police officer with the Anne Arundel County Police Department. As was his custom, on that date he had stopped at the fire building to obtain coffee, and pick up any mail addressed to him as chief of the fire company. As soon as the appellee entered the building he became engaged in a conversation with Darr and Chief (Officer) Elswick with regard to a schedule redefining the lines of the territory for each of the Anne Arundel County fire departments. This letter or schedule had been mailed to Officer Elswick as chief of the Herald Harbor Department, and was received by him that day.
*365 The conversation among the three men concerned the new schedule and each man's disappointment with it. Appellee, after reading the new schedule, attempted to place it in Chief Elswick's inside blouse pocket, while remarking that the chief ought to do something about it. He next turned and started to walk away when Chief (Officer) Elswick's police pistol inadvertently fired, and appellee was struck in his hip by the bullet.
Appellants contend that both the Commission and the trial court erred in holding that the injury was compensable. They contend that a correct decision on that point would compel the conclusion that appellee did not meet the requirements of Code (1957, 1964 Repl. Vol.), Art. 101, Sec. 15, which provides that the claimant sustain an accidental injury arising out of and in the course of his employment, in order to receive compensation. The meaning of the words "arising out of" and "in the course of" employment has been defined by this Court. See Miller v. Coles, 232 Md. 522, 194 A.2d 614, and cases therein cited; Scherr v. Miller, 229 Md. 538, 184 A.2d 916, and cases therein cited.
It is generally held that one who instigates or participates in horseplay is usually not entitled to compensation. Hill v. Liberty Motors, 185 Md. 596, 45 A.2d 467. However, minor acts of horseplay do not automatically constitute "departure" from employment if the acts are found to be insubstantial. "So, whether initiation of [or participation in] horseplay is a deviation from course of employment would depend on (1) the extent and seriousness of the deviation, (2) the completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty), (3) the extent to which the practice of horseplay had become an accepted part of the employment, and (4) the extent to which the nature of the employment may be expected to include some such horseplay." 1 Larson, Workmen's Compensation Law, sec. 23, p. 342. Life for the working man would indeed be grim if all acts of "frivolity," "skylarking," "fooling," or "horseplay" are prohibited, or, if engaged in, preclude compensation, as a matter of law.
Thus, all acts instigated or participated in by a claimant, *366 which may be described by any of the above or similar phrases, do not automatically bar compensation being received. If reasonable minds could not disagree about the conclusion resulting from a particular set of undisputed or conceded facts, the question becomes one of law to be decided by the court. If reasonable persons could disagree as to what the facts are, or the inferences and conclusions to be drawn from undisputed facts, the question is one for the trier of the facts.
The decision of the Commission is prima facie correct, Code (1957, 1964 Repl. Vol.), Art. 101, Sec. 56(c); Stewart & Co. v. Howell, 136 Md. 423, 110 A. 899; and if there is any competent, material evidence to support the findings below, the weight and value of such evidence must be left to the trier of facts, as it is not our function to determine the comparative weight of conflicting evidence. Bethlehem Steel Co. v. Jones, 222 Md. 54, 158 A.2d 621; Stancliff v. H.B. Davis Co., 208 Md. 191, 197, 117 A.2d 577.
We believe that a careful review of the evidence, in the light of Art. 101, Sec. 56(c) and Maryland Rule 886 a, admits of the conclusions reached by both the Commission and the court. All of the evidence is to the effect that there was no animosity between appellee and Chief Elswick. The appellee testified that after the discussion about the contents of the letter affecting the fire department, while sticking the letter in the chief's pocket, he said, "Here, Chief, you'd better go up there and get that straightened out." He then turned to go to another part of the building when the gun was fired. Appellee does say that he may have brushed the letter across the chief's face in a playful manner. It is true that the chief gives a slightly different version of the occurrence, but this creates an issue of credibility, and is one for decision by the trier of facts. Bethlehem Steel Co. v. Jones, supra. In this case we believe that the act of playfully brushing a letter across the chief's face, and then, while placing it in his pocket, suggesting that the chief take some action in regard to the contents of the letter, constitutes facts on which reasonable persons may disagree as to whether the degree of departure is sufficient to justify a legal conclusion that he did not meet the requirements of Art. 101, Sec. 15, referred to above. In other words, we do not feel that there has been a *367 showing of a sufficient departure from appellee's employment which will permit our ruling as a matter of law that the accident did not arise out of or in the course of the employment.
Appellants place great reliance in support of their contention on the case of Hill v. Liberty Motors, supra. On the facts of that case this Court held that the lower court was not clearly wrong in denying compensation to the family of the decedent who died as the result of a rather violent scuffle which occurred during an argument over an article that appeared in a newspaper. Neither the newspaper article nor the resulting scuffle had anything to do with the employment of the participants in the scuffle; it "could very well have occurred at any place" (Hill, p. 607). In the present case, not only was there no animosity between the parties, but the physical contact, as well as the episode itself prior to the pistol firing, was of a trivial nature. In addition, the discussion between the appellee and the fire chief immediately prior to and at the time of the injury concerned the business of the employer and the occupation of the employee. Whether the rather extreme factual situation in Hill would have permitted a ruling as a matter of law (no such ruling was made) that the accident did not arise out of or in the course of employment, is unnecessary to consider; for the facts in the case now before us differ significantly, in the important respects enumerated above, from those that existed in Hill.
We conclude that there was sufficient evidence to support the findings of both the Commission and the lower court under the standards spelled out above, that the accident arose out of and in the course of appellee's employment.
Judgment affirmed, with costs.
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152 Conn. 331 (1965)
EUGENE N. BUNTING, EXECUTOR (ESTATE OF ALICE N. BUNTING)
v.
JOHN L. SULLIVAN, TAX COMMISSIONER
Supreme Court of Connecticut.
Argued November 4, 1964.
Decided January 20, 1965.
KING, C. J., MURPHY, ALCORN, SHANNON and LEIPNER, JS.
*332 William Reeves, with whom was David O. Jackson, for the plaintiff.
Irving L. Levine, inheritance tax attorney, with whom, on the brief, were Harold M. Mulvey, attorney general, and Robert J. Hale, first assistant tax commissioner, for the defendant.
ALCORN, J.
This case concerns a succession tax imposed on the estate of Alice N. Bunting. Mrs. Bunting died, a resident of Fairfield, Connecticut, on February 24, 1961, and her estate is in process of settlement there. In January, 1922, while domiciled *333 in Massachusetts, she executed a trust indenture with Massachusetts trustees. The trust instrument indicates that Mrs. Bunting was then a widow and the expectant beneficiary of a legacy of $50,000 under the will of her deceased husband's father contingent on the death of her husband's mother, who was then living. Under the terms of the trust, Mrs. Bunting transferred to her trustees certain stocks, bonds and securities and her interest in the $50,000 legacy. The stocks, bonds and securities were then, and ever since have been, held in Massachusetts. So far as now material, it was provided that the income from the trust be paid to Mrs. Bunting for life, and, at her death, to her four children in equal shares until they reached the age of twenty-five, at which time each child would receive his or her proportionate share of the principal. The trust instrument provided that the spouse or issue of any child who died before Mrs. Bunting would receive, upon the death of Mrs. Bunting, the parent or spouse's share of the principal and any accumulations in the proportions appointed by the parent or spouse, or, in default of appointment, according to the laws of intestacy. Mrs. Bunting reserved the right to add to the corpus of the trust at any time by the transfer of additional securities or by written instructions to the trustees to accumulate any part of the income payable to her. She retained no power to control the administration of the trust or to alter, amend or revoke it. Her purpose was to ensure that her children would have the property left to her by their father and grandfather, to free herself of the management of it, and to safeguard the property from diminution during a contemplated second marriage.
About six months later, Mrs. Bunting remarried *334 and, sometime after February, 1927, acquired a domicil in Connecticut.[1] She continued thereafter to reside in this state until her death thirty-four years later. Her will, dated July 8, 1953, left her entire estate, inventoried at $114,847.23, in equal shares to her three surviving children. Her executor reported transfers which she had made other than by will or intestacy, the principal item being the 1922 trust, the assets of which, at the date of her death, were valued at $323,267. The remaindermen of the trust are Mrs. Bunting's three children, who are the designated beneficiaries under her will, and the widow and two children of a son who predeceased Mrs. Bunting.
The Probate Court decreed that the succession to the property conveyed under the 1922 trust was subject to the Connecticut succession tax, and the executor appealed to the Superior Court, which reserved the two questions stated in the footnote for our determination.[2]
The plaintiff urges us to reexamine the decision in Hackett v. Bankers Trust Co., 122 Conn. 107, 187 A. 653, to the extent that that case holds (p. 123) the taxability of an inter vivos trust under what *335 is now General Statutes § 12-341 (d) to be unaffected by the circumstance that the settlor was, at the time of creating the trust, domiciled outside Connecticut. The argument is that the rationale under which the disposition of intangibles, wherever situated, is governed by the law of the state of domicil breaks down in the case of an inter vivos trust such as the one here involved.
Section 12-340 of the General Statutes imposes a tax on transfers, in trust or otherwise, of intangible property from a resident of this state. No claim is made that § 1261 of the Revision of 1918, which was in effect at the time of the creation of the trust, is applicable here rather than § 12-340 and, in any event, the pertinent parts of the two sections are in substance the same. Section 12-341 (d), with which we are concerned, provides that such a transfer shall be taxable if made "by gift or grant intended to take effect in possession or enjoyment at or after the death of the transferor." This provision has been in effect continuously since 1915. Miller v. Connelly, 142 Conn. 144, 147, 112 A.2d 202. At the time the Hackett case was decided, the law was already settled that the Connecticut succession tax could properly be imposed on a transfer, by an irrevocable trust, of intangible personal property located outside the state, by a Connecticut domiciliary, to trustees outside the state, to pay the income to the transferor for life and at his death to pay the corpus to designated beneficiaries. Blodgett v. Guaranty Trust Co., 114 Conn. 207, 213, 158 A. 245, aff'd, 287 U.S. 509, 53 S. Ct. 244, 77 L. Ed. 463. The Hackett case added only the element that, in that case, the settlor of the trust acquired a Connecticut domicil after creating one of the trusts.
*336 The nature and applicability of the tax established by § 12-341 (d) has been fully discussed in previous decisions of this court. The tax is imposed on the privilege of succeeding to the right of possession or enjoyment of property from a former owner at his death; Pape v. Sullivan, 151 Conn. 39, 43, 193 A.2d 480; even though the shifting of enjoyment follows from a prior transfer of title inter vivos; Bryant v. Hackett, 118 Conn. 233, 244, 171 A. 664; Miller v. Connelly, supra, 148; or as a result of a contractual obligation. Seymour Trust Co. v. Sullivan, 152 Conn. 282, 286, 206 A.2d 420; Dolak v. Sullivan, 145 Conn. 497, 502, 144 A.2d 312.
The plaintiff asserts that Mrs. Bunting retained only a life income from the corpus of this trust and that such an interest is insufficient for the application of the doctrine of mobilia sequuntur personam. A distinction is thus sought to be made between this case and Hackett v. Bankers Trust Co., supra, in which, the plaintiff says, "the settlor retained substantial control over the trust assets by his investment and reinvestment powers." The element of "control," however, is not crucial and was not basic to the decision in the Hackett case. "What is sought to be taxed is not the property itself but `rather and only the ... succession to ... the title and beneficial enjoyment of the property which took place by reason of [the] death.... The thing the transfer of which is taxed is "an incorporeal property right which attaches to the person of the owner in the State of his domicil."`" Hackett v. Bankers Trust Co., supra, 122.
Where a trust is involved, the doctrine of mobilia sequuntur personam treats intangibles as being owned by a settlor at death and as having their situs, for purposes of the succession tax, in the *337 state of the settlor's domicil. Blodgett v. Silberman, 277 U.S. 1, 10, 48 S. Ct. 410, 72 L. Ed. 749; Bryant v. Hackett, supra, 248. Since the tax is imposed on the shifting of possession and enjoyment of the property at the death of the settlor, his domicil at that time controls. Central Hanover Bank & Trust Co. v. Kelly, 319 U.S. 94, 98, 63 S. Ct. 945, 87 L. Ed. 1282. The domicil of the settlor at the time of his death is the logical place for the imposition of the tax unless the intangible trust assets have acquired a business situs elsewhere, and no such claim is made in this case.
Under the facts of this case, Mrs. Bunting retained an interest in the intangibles forming the corpus of this trust which could be described as an equitable life estate, in addition to which she could, to some degree, influence the administration of the trust by the exercise of her power to add to the corpus. For thirty-four years Mrs. Bunting enjoyed the protection of the laws of this state, she died here, and her estate is being probated here. The possibility that another state might also subject this tranfer to a tax is immaterial. Blodgett v. Silberman, supra. One who extends his activities in trusts and intangibles beyond the borders of a single state does so at his own risk. Curry v. McCanless, 307 U.S. 357, 367, 59 S. Ct. 900, 83 L. Ed. 1339.
While legal title to these intangibles had passed to the trustees in 1922, the equitable life estate in them remained in Mrs. Bunting with a remainder in her named beneficiaries to take effect on her death. At her death, this remainder was, by her direction, transferred to the possession and enjoyment of those beneficiaries, and that transfer is properly subject to the Connecticut succession tax. *338 We find no reason for distinguishing the Hackett case, nor do we find persuasive the reasoning of MacClurkan v. Bugbee, 106 N.J.L. 192, 150 A. 443, or Commonwealth v. Morris, 196 Va. 868, 86 S.E.2d 135, which the plaintiff urges us to adopt.
The plaintiff also claims that the imposition of the tax would lead to injustice in this case because the executor may be compelled to pay the tax without an opportunity to obtain reimbursement from the nonresident remaindermen against whose share it is imposed. General Statutes §§ 12-376, 12-378, 12-384, 12-385; see Ericson v. Childs, 124 Conn. 66, 79, 198 A. 176; Hackett v. Bankers Trust Co., supra, 126. The claim is unsound. Three of the remaindermen under the trust, two of whom are nonresidents, are, as already indicated, the three legatees under the will, and the tax on their respective interests can be recouped from their shares of the decedent's estate. § 12-385. The other remaindermen are, according to the stipulated facts, the widow and two children of Mrs. Bunting's deceased son William, of Westport, Connecticut. No difficulty would thus appear to be presented to the executor in enforcing reimbursement by them of any payment made by him. While no likelihood of injustice therefore appears in this case, the fact that an injustice might arise under other circumstances would not affect the imposition of the tax. Hopkins' Appeal, 77 Conn. 644, 654, 60 A. 657.
We answer "Yes" to each of the questions propounded in the reservation.
No costs will be taxed in this court to either party.
In this opinion the other judges concurred.
NOTES
[1] The record does not disclose when or why she again assumed the name of her first husband.
[2] "1. Whether the Connecticut Succession Tax may be imposed on a transfer in trust pursuant to an Indenture of Trust, dated January 6, 1922, ... established by a Massachusetts resident and domiciliary under which she had the life income and who was a resident of and domiciled in Connecticut at her death, the corpus of which trust at all times was administered in Massachusetts by trustees of that state and located therein?
"2. Whether the Connecticut Succession Tax may be imposed on a transfer in trust by said Indenture of Trust ... under the facts of the stipulation where the assets of the trust are located outside of Connecticut and the remaindermen thereof are not all legatees under the decedent's Will and two of such remaindermen and legatees are non-residents of Connecticut?"
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846 S.W.2d 854 (1992)
DERR CONSTRUCTION COMPANY, Appellant,
v.
CITY OF HOUSTON, Blount Brothers Corporation, Gilbane/Mayan Joint Venture, Gilbane Building Company and Mayan Contractors, Inc., Appellees.
No. B14-91-00518-CV.
Court of Appeals of Texas, Houston (14th Dist).
April 30, 1992.
Rehearing Denied July 2, 1992.
*855 M. David Frock, Dianne Zomper, Houston, for appellant.
*856 Rebecca A. Van Deuren, Kenneth D. Kuykendahl, Charles E. Fitch, S. Bradley Todes and Sheryl Silkes Roper, Houston, for appellees.
Before PAUL PRESSLER, MURPHY and CANNON, JJ.
OPINION
MURPHY, Justice.
This is an appeal from summary judgments granted in favor of the appellees. Appellant brings one point of error alleging the trial court erred in granting the summary judgments in favor of the appellees. We affirm.
On April 28, 1986, an accident involving a crane occurred at the construction site of the George R. Brown Convention Center in Houston, Texas. The property upon which the convention center was being constructed was owned by the City of Houston (the City). The City contracted with Blount, Inc., successor in interest by merger to Blount Brothers Corporation (Blount) to act as the general contractor and with Gilbane/Mayan Joint Venture, Gilbane Building Company and Mayan Contractors, Inc. (Gilbane) to act as the construction administrator. Blount sub-contracted with Derr Construction Company (Derr). Derr was to perform steel erection on the project. On the day of the accident, one of Derr's employees was driving a Linkbelt 718 crane on one of the construction roadways on the site. As the crane was being driven over the roadway, the road collapsed into an underground cavity present under the road. The crane fell into the hidden cavity. The accident caused extensive damage to the crane and the boom attached to the crane. The crane was covered by an insurance policy provided by United States Fire Insurance Company (U.S. Fire). U.S. Fire paid Derr for the crane less the deductible owed by Derr under the terms of the policy.
After the accident, Derr sued the City, Blount and Gilbane for damages to the crane. Derr brought claims of negligence, ordinary and gross, and breach of contract. Derr sought money damages not covered by the insurance policy plus the deductible, and U.S. Fire asserted its subrogation rights to recover the amount paid Derr under the insurance policy. Blount and Gilbane-Mayan filed a joint motion for summary judgment and the City filed a motion for summary judgment. The motions for summary judgment alleged several grounds under which the appellees alleged they were entitled to judgment as a matter of law. On February 22, 1991, the trial court granted both motions for summary judgment and severed the counterclaims brought against Derr by the appellees. Appellant Derr appeals from the trial court's order granting summary judgments in favor of the appellees.
In its sole point of error, Derr contends the trial court erred in granting summary judgments in favor of the appellees.
A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits. An appellate court does not view the evidence in the light most favorable to the judgment of the trial court when reviewing the granting of a summary judgment. At either the trial or the appellate level, the question is not simply whether the non-movant raised a material fact issue to defeat the motion for summary judgment, rather the movant must prove beyond question that it was entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-29 (Tex.1970); Flowers v. United Ins. Co. of Am., 807 S.W.2d 783, 785 (Tex. App.Houston [14th Dist.] 1991, no writ); Tex.R.Civ.P. 166a(c). If the movant fails to prove entitlement to judgment as a matter of law, the appellate court must remand the case for a trial on the merits. Flowers, 807 S.W.2d at 785. The standards for reviewing a summary judgment have been clearly mandated by the Texas Supreme Court:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
*857 3. Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in its favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).
As grounds for their summary judgment motions, the appellees asserted: (1) the subcontract between Derr and Blount released the appellees from any liability for damage to the crane; (2) U.S. Fire cannot pursue the subrogation action because Derr released the appellees from any liability and Derr agreed to waive subrogations rights against the appellees, thus destroying the insurance company's subrogation rights; and (3) neither Derr nor U.S. Fire can maintain this suit because the subcontract required Derr to name the appellees as additional insureds in its insurance policies and it failed to do so. The City asserted these contractual defenses and also asserted governmental immunity. Since all of the appellees asserted contractual defenses in support of their motions for summary judgment it was necessary for them to prove at least one of the defenses as a matter of law in order to be entitled to summary judgment. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). In this case, the trial court's order granting the summary judgments did not specify the ground or grounds upon which it relied in making its determination. When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79-80 (Tex. 1989). Therefore, while indulging every reasonable inference in favor of the nonmovant, Derr, we must determine if the appellees proved any of the asserted defenses as a matter of law.
The first ground for summary judgment asserted by all of the appellees is that a provision in a rider dated March 1, 1985, attached to the subcontract between Derr and Blount released all of the appellees from any liability for damage to the crane.
The provision in question states:
24. Paragraph [a] of Article IX of the printed form is hereby deleted and shall be replaced with the following:
(i) Subcontractor hereby assumes full responsibility and liability for the work to be performed hereunder and hereby releases, relinquishes and discharges and agrees to indemnify, protect and save harmless Contractor, the City, the Architect, Construction Administrator and any of their agents, servants and employees of and from all claims, demands and causes of action of every kind and character including the cost of defense thereof, for any injury to, including death of, persons (whether they be third persons, contractor, or employees of either of the parties hereto) and any loss of or damage to property (whether the same be that either of the parties hereto or of third parties) caused by or alleged to be caused, arising out of, or in connection with Subcontractor's work to be performed hereunder, or by the reason of the sale or manufacture of any material or equipment covered hereby, or the use thereof by the City after installation thereof, whether or not said claims, demands, and causes of action in whole or in part are covered by insurance hereinbefore. The Subcontractor further agrees to defend any suit or action covered by this Paragraph (a) brought against one or more of the Contractor, the City, the Architect or the Construction Administrator, their agents, servants, and employees for any alleged loss, damage, injury to, or death of, persons or property loss or patent infringement and to pay all damages, costs and expenses, including attorney's fees, arising in connection therewith or resulting therefrom. These obligation to indemnify and defend shall cover any cost of any kind including by (sic) not limited to in any way by any limitations of the amount or type of damages, compensation or benefits payable by Subcontractor under Worker's Compensation acts, disability acts or other employee benefit acts. Subcontractor expressly acknowledges that it has received from Contractor $100 and other fair, adequate and *858 separate consideration in return for its agreement to provide indemnification as provided herein.
(ii) As a limitation on the foregoing Subparagraph (a)(i), Subcontractor shall have no duty to indemnify or defend Contractor for claims, demands, or causes of action not involving the negligence of the Subcontractor or those for whom the Subcontractor is responsible. With respect only to such claims, demands, or causes of action covered by this subparagraph (a)(ii), Contractor, provided Contractor or its employees were negligent, will owe the obligation to indemnify and to defend to Subcontractor.
This clause was changed at Derr's request by a change order dated April 17, 1985. The former provision put Derr at a distinct disadvantage as far as the indemnity portion of the clause was concerned. Therefore, Derr insisted that it be changed.
The appellees argued in their motions for summary judgment that this provision released appellees from any liability for damages to the crane. Derr contends that this provision is a mere indemnity clause, not an exculpatory clause, and therefore does not apply to the suit between Derr and the appellees. On appeal, the appellees allege that the provision is an exculpatory clause and an indemnity clause contained within the same paragraph, and the change order insisted upon by Derr altered the indemnity provision but left the exculpatory clause unaltered.
An exculpatory clause or a release of liability and an indemnity provision have distinctive characteristics that distinguish one from the other. Cox v. Robison, 105 Tex. 426, 150 S.W. 1149, 1155 (1912); Dresser Indus., Inc. v. Page Petroleum, Inc., 821 S.W.2d 359, 362 (Tex.App.Waco 1991, writ granted). A release extinguishes a claim or cause of action as would a prior judgment and is an absolute bar to any suit on the released matter. Hart v. Traders & Gen. Ins. Co., 144 Tex. 146, 189 S.W.2d 493, 494 (1945); Dresser, 821 S.W.2d at 362. An indemnity provision arises from a promise by the indemnitor to safeguard or hold the indemnitee harmless against existing or future loss, liability, or both. Dresser, 821 S.W.2d at 362; Russell v. Lemons, 205 S.W.2d 629, 631 (Tex.Civ. App.Amarillo 1947, writ ref'd n.r.e.). Unlike the release, which suppresses a cause of action, an indemnity provision creates a potential cause of action between the indemnitee and the indemnitor. Id.
Another difference between a release and an indemnity provision exists. A release extinguishes any actual or potential claim the releasor might have against the releasee without regard to the releasee's liability to third parties. Dresser, 821 S.W.2d at 362; see Whitson v. Goodbodys, Inc., 773 S.W.2d 381, 383 (Tex.App.Dallas 1989, writ denied). In contrast, an indemnity provision does not apply to claims between the parties to the agreement. Rather it obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision. Id.
In this case, we will look at the provision in question with these distinctions in mind to determine whether the provision in question releases, indemnifies, or releases and indemnifies.
A breakdown of the provision reveals that it requires Derr to do three things: (1) assume full responsibility and liability for the work to be performed; (2) release, relinquish and discharge the appellees from liability; and (3) indemnify the appellees:
Subcontractor hereby assumes full responsibility and liability for the work to be performed hereunder, and hereby releases, relinquishes and discharges and agrees to indemnify protect and save harmless Contractor, the City ... Construction Administrator ... from all claims, demands and causes of action of every kind and character including the cost of defense thereof, for any injury to, including death of, person (whether they be third persons, contractor, or employees of either of the parties hereto) and any loss of or damage to property (whether the same be that either of the parties hereto or of third parties) caused by or alleged to be caused, arising out of, or in connection with Subcontractor's work to be performed hereunder... whether or not said claims, demands *859 and causes of action in whole or in part are covered by insurance hereinbefore... (emphasis supplied)
The provision clearly states that Derr is to be responsible for its work and release and indemnify the appellees. The very words used in the provision lend credence to the fact that this is a release coupled with an indemnity provision. Typical indemnity language is "indemnify, save, protect, save/hold harmless." Release language is generally "release, discharge, relinquish." Both types of language appear in the subcontract between Derr and Blount. Derr argues that all of the words used are general words of indemnity that can be used interchangeably. However, the use of all of these words, separated by the "and", in the same provision, shows an intent to release as well as indemnify.
The language in the parenthetical portions of the provision is very illuminating and further strengthens this interpretation when the differences between a release and an indemnity provision are considered. The parenthetical statements are to the effect that the provision applies whether the damage is to a third person or his property or to the parties themselves. As we stated earlier, a release is effective as between the releasor and the releasee without regard to third parties, while an indemnity clause is effective as between the indemnitor and the indemnitee with specific regard to third parties. We recognize that parties often include this type of language in mere indemnity provisions, see Dresser, 821 S.W.2d at 363, however, this language coupled with the release language in the provision is further proof that the clause in this case is more than a mere indemnity provision.
Derr next argues that even if the provision is both an exculpatory clause and indemnity clause, the appellees cannot escape liability because the language contained in paragraph (a)(i) is limited by that in (a)(ii). While it is true that (a)(ii) places a limitation of the language used in (a)(i), the limitation goes only to the indemnity portion of paragraph (a)(i). The limitation states that the subcontractor (Derr) shall have no duty to indemnify or defend the contractor if the subcontractor is not negligent, and the contractor shall have the duty to indemnify or defend the subcontractor if the contractor is negligent. This limitation speaks specifically of the duty to indemnify; it does not mention a limitation on the subcontractor's duty to release the appellees. It does not even contain any of the release language used in the preceding paragraph. Derr's argument as to the limitation is without merit.
Derr argues that because Blount is the party which prepared the contract containing this provision it must be construed most strictly against it, especially since the clause purports to exempt Blount from liability. See Temple-Eastex Inc. v. Addison Bank, 672 S.W.2d 793, 798 (Tex. 1984); Manzo v. Ford, 731 S.W.2d 673, 676 (Tex.App.Houston [14th Dist.] 1987, no writ). This court acknowledges that these statements are correct statements of law, but the circumstances behind the final draft of this specific provision have a bearing on its construction. See Manzo, 731 S.W.2d at 676. When the paragraph was initially drafted, the indemnity portion was less than favorable to Derr. Further, the original provision contained no limitation on indemnity as did the final draft (paragraph (a)(ii)). The indemnity portion of the provision was changed and paragraph (a)(ii) was added at Derr's insistence, yet Derr chose not to delete or change the release language. That portion of the provision remained unchanged from the original. An exculpatory clause is enforceable unless one party is at a disadvantage in bargaining power and the contract is void as against public policy. Allright Inc. v. Elledge, 515 S.W.2d 266, 267 (Tex.1974). Since Derr had sufficient power to require Blount to change the indemnity portion of the provision, it cannot be said that it was at such a disadvantage in bargaining power so as to render the provision and the contract void. Considering the circumstances surrounding the negotiation of the subcontract and the bargaining positions of the parties, we find that the provision clearly excludes Derr's claims against the appellees.
*860 Derr also relies on the Dresser case for its claim that the clause in question is a mere indemnity provision. In Dresser, Page brought suit against Dresser Industries (Dresser) and Houston Fishing Tools Company (Houston). Page claimed that Dresser and Houston had negligently damaged an uncompleted oil well. Dresser, 821 S.W.2d at 361. The jury found that both Dresser and Houston were negligent. Id. On appeal, Dresser and Houston argued that certain provisions in the contract between Page, Dresser and Houston released them from any liability for damage to the oil well. Id. In the contract there were two separate provisions: one as to Dresser and one as to Houston. The court of appeals held that the Dresser provision was an indemnity clause, but the Houston provision was a release. Id. at 363-64. The Dresser provision stated, in pertinent part:
Except where damage or injury is caused by gross or willful negligence on our part, [Page] shall indemnify [Dresser] and hold [Dresser] free and harmless from all claims for personal injuries, including death and damage, including subsurface damage or injury to the well ... including claims alleging that injuries or damages were caused by [Dresser's] negligence, whether such claims are made by [Page], by [Page's] employees, or by third parties.
(emphasis in the original) Id. at 363. The Houston provision stated, in pertinent part:
[Houston] shall not be liable to [Page] on any theory of legal liability against which [Houston] may legally contract for any injury or damage to persons ... or to property (whether subsurface or not, including reservoir loss) and any losses arising out of such damage where such damage is sustained in connection with, arising out of, or resulting from the service or material used in the service.
(emphasis in the original) Id. at 364. The Dresser provision, unlike the provision in the case before us, does not contain any release language, e.g. release, discharge or relinquish. The Houston provision contains release language, yet contains no indemnity language, e.g. indemnify, protect, save or hold harmless. The provision in this case contains both indemnity language, like the Dresser provision, and release language, like the Houston provision. In fact, the release language in the provision between Derr and the appellees is even more specific than that approved by the court in Dresser. The provision at issue here surrenders legal rights or obligations between the parties, as well as providing for indemnity. Id. at 362. ("The Subcontractor [Derr] hereby ... releases and discharges... contractor [Blount], the City, the Architect, Construction Administrator [Gilbane]... from all claims, demands, and causes of action ...")
Derr's reliance on Dresser is misplaced. There is nothing in Dresser which precludes a contractual provision from being both an indemnity provision and a release within the same paragraph. It would be illogical to hold that if the provision were separated out into two separate paragraphs they would be valid, but if they are contained in a single paragraph they become invalid.
Derr makes two other arguments in which it contends that the release is invalid or cannot be relied upon by the appellees. The first of these arguments is a third-party beneficiary argument in which Derr argues that the City and Gilbane were not parties to the contract between Derr and Blount, and therefore cannot rely on any of the contract provisions in order to escape liability except as thirdparty beneficiaries. Derr claims that the City and Gilbane are not third party beneficiaries to the contract, but merely incidental beneficiaries. The cases cited by Derr itself defeat this argument. Several of the cases cited by Derr state that parties are presumed to have contracted only for themselves unless it "clearly appears" that they intended a third party to benefit from their contract. Fidelity Sav. & Loan Ass'n v. Morrison & Miller, Inc., 764 S.W.2d 385, 387 (Tex.App.Beaumont 1989, no writ), citing Corpus Christi Bank & Trust v. Smith, 525 S.W.2d 501, 503-04 (Tex.1975); Republic Nat'l Bank v. National Bankers Life Ins. Co., 427 S.W.2d 76, 79 (Tex.Civ. App.Dallas 1968, writ ref'd n.r.e.); Stahl *861 v. Rawlins, 304 S.W.2d 549, 556 (Tex.Civ. App.Dallas 1957, writ ref'd n.r.e.). Derr also cites these cases for the proposition that third-party beneficiary status is usually an issue for a jury to determine. The key word in that statement is "usually." In this case, it clearly appears from the terms of the provision that the City and Gilbane were intended to benefit from the contract. The City and Gilbane are specifically mentioned in the release. Thus, by the terms of the agreement itself, the City and Gilbane were to benefit from the contract as a matter of law. It is a tenet of contract law that generally in contract interpretation, the instrument itself will be deemed to express the intentions of the parties because objective, not subjective, intent controls. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). In other words, the question is not what the parties meant to say, but what they did say. Republic Nat'l Bank, 427 S.W.2d at 80. Therefore, Mr. Derr's self-serving statements in his affidavit of what Derr intended in the contract are of no consequence. The case which Derr contends is directly on point is B & C Constr. Co. v. Grain Handling Corp., 521 S.W.2d 98 (Tex.Civ.App.Amarillo 1975, no writ). In B & C, United Steel contracted with Castro County to build a grain storage building on the property owned by Grain Handling. United Steel then subcontracted with B & C for the erection of the building. After the building was finished, Grain Handling took possession. Soon after Grain Handling took possession, the building collapsed. Grain Handling brought suit against the County, United Steel and B & C. The contested issue in the case concerned venue. Id. at 101. The question was whether Grain Handling was a third-party beneficiary to the contract between United Steel and B & C. The court noted that it is presumed that parties contract for themselves and not for the benefit of a third party unless it clearly appears that such was the intent of the contracting parties. Id. Reviewing the subcontract between United Steel and B & C, the court stated that there was nothing in the instrument pertaining to, or stating that the grain storage building was being constructed for Grain Handling, and p.Houston [4th Dist.] 1992) therefore, the court held that it did not clearly appear from the terms of the subcontract that the contracting parties intended to bestow a benefit on Grain Handling. Id. at 101-02.
Unlike the subcontract in the B & C case, the subcontract between Derr and Blount specifically refers to the City and the construction administrator, Gilbane, as well as Blount. Therefore, from this express language it "clearly appears" that the parties to the subcontract intended to benefit the City and Gilbane by releasing them from liability. See also, Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111 (Tex. App.Houston [14th Dist.] 1991, writ denied) (a party may claim protection of a release if it is referred to with descriptive particularity such that connection with the event is without doubt). Derr's third-party beneficiary argument is without merit.
In connection with this same argument, Derr contends that neither the City nor Gilbane can rely on the release provision unless they proved as a matter of law that Blount was not in breach of the subcontract. The cases relied on by Derr in support of this proposition were not summary judgment cases, they were jury cases in which the jury expressly found breach of contract. See Baker Marine Corp. v. Weatherby Eng'g Co., 710 S.W.2d 690, 696 (Tex.App.Corpus Christi 1986, no writ). Appellant cites no authority which would impose a duty upon a summary judgment movant to negate all potential claims before being allowed to rely on a release provision. The law in Texas is in fact quite the opposite. See Federated Dept. Stores, Inc. v. Houston Lighting & Power Co., 646 S.W.2d 509 (Tex.AppHouston [1st Dist.] 1982, no writ) (contractual limitation of liability is prima facie defense to claim and burden shifts to non-movant to offer evidence to defeat same); Porter v. Lumbermen's Inv. Corp., 606 S.W.2d 715 (Tex.Civ. App.Austin 1980, no writ) (when movant proves affirmative defense burden shifts to non-movant to offer proof avoiding affirmative defense). In this case, the City and Gilbane made out a prima facie case based on the release provision and Derr failed to *862 present any proof that Blount had breached the subcontract.[1]
The final argument made by Derr is that the subcontract is ambiguous, and therefore, the trial court erred in granting summary judgments in favor of the appellees. Derr contends that the release/indemnity provision in the subcontract between Derr and Blount is in conflict with certain provisions of the general contract between Blount and the City which is incorporated by reference into the subcontract. The provisions in the general contract to which Derr refers generally state that Blount is responsible for damages to person or property caused by its own negligence.
Whether a contract is ambiguous is a question of law for the court. City of Pinehurst, 432 S.W.2d at 518; Phillips v. Union Bankers Ins., 812 S.W.2d 616, 620 (Tex.App.Dallas 1991, n.w.h.). Generally, the parties to an instrument intend every clause to have some effect and in some measure to evidence their agreement. City of Pinehurst, 432 S.W.2d at 518. When provisions in an agreement appear to be in conflict, the court should examine and consider the entire writing, seeking to harmonize and reconcile the conflicting provisions to the greatest extent possible. Manzo, 731 S.W.2d at 676, citing Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex. 1984). In achieving this objective, the court should favor an interpretation that gives effect to all provisions of the contract so that none will be rendered meaningless and the primary purpose of the agreement and intent of the parties will be effectuated. Manzo, 731 S.W.2d at 676, citing R & P Enter, v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 519 (Tex.1980). If a contract can be given a certain definite legal meaning or interpretation it is not ambiguous. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). When a case involves the interpretation of a contract and the contract is found to be unambiguous, summary judgment is proper. RGS, Cardox Recovery, Inc. v. Dorchester Enhanced Recovery Co., 700 S.W.2d 635, 638 (Tex.App.Corpus Christi 1985, writ ref'd n.r.e.).
The provisions from the general contract which Derr claims are in conflict with the release/indemnity provision of the subcontract can be harmonized so that meaning may be given to all the provisions. In the general contract, Blount has agreed with the City to be generally liable for damages, however, in the subcontract between Derr and Blount, Derr has agreed to assume responsibility for any damages to persons or property resulting from its work, thereby alleviating part of the duty imposed on Blount in the general contract. There is no conflict between the two contracts, and the contract is not ambiguous.
Indulging every inference in favor of the non-movant, we hold that the provision in the subcontract constitutes a release coupled with an indemnity provision. Based on the release, the summary judgments in favor of the appellees were proper. Since we have determined that summary judgment was proper based on the release contained in the subcontract, it is unnecessary to review the appellees' other grounds in support of summary judgment. See Rogers, 772 S.W.2d at 79-80. Derr's sole point of error is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] During oral argument, Derr's attorney seemed to argue that even if the release provision were applicable, it only released the appellees from the negligence claims asserted by Derr and not the breach of contract claims. We disagree. The entire suit is based on damage to the crane. The release provision clearly covers any claim arising from property damage whether the same be couched in terms of negligence or breach of contract. Once the appellees proved they were released as a matter of law, the burden shifted to Derr to raise a defense to the release. See Federated, 646 S.W.2d at 511; Porter, 606 S.W.2d at 717.
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416 Pa. 348 (1965)
Speranza Liquor License Case.
Supreme Court of Pennsylvania.
Argued November 13, 1964.
January 5, 1965.
*349 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
*350 Robert Davis Gleason, with him Gleason & Krumenacker, for appellants.
Lawrence L. Davis, Special Assistant Attorney General, for Pennsylvania Liquor Control Board, appellee.
OPINION BY MR. JUSTICE COHEN, January 5, 1965:
Appellants are holders of a hotel liquor license. As a result of an open inspection on September 22, 1962, by Liquor Control Board agents at the licensed premises, appellants' license was suspended for 20 days on the ground that "[t]he licensees, their servants, agents, or employees permitted minors to frequent the licensed premises on September 22, 1962," in violation of the Liquor Code. This statute provides, inter alia, that "[i]t shall be unlawful . . . (14) for any hotel . . . liquor licensee . . . to permit . . . minors to frequent his licensed premises . . . except minors accompanied by parents, guardians, or under proper supervision." Act of April 12, 1951, P.L. 90, § 493 (14), 47 P.S. § 4-493(14).
Licensees appealed from the suspension to the court of quarter sessions. After a hearing, which incorporated the testimony before the board, and after taking additional testimony, that court sustained the appeal and directed the board to revoke the suspension. The board appealed to the Superior Court which reversed the court of quarter sessions. We granted allocatur.
The parties and the lower courts have treated this case as though the dispositive question is whether or not there was "proper supervision" of minors who "frequent" the premises. We find it unnecessary to *351 reach this question because, regardless of whether there was "proper supervision," the record does not support a finding that minors "frequent" the licensed premises. Such a finding would be necessary to make out a violation.
The officer who conducted the only inspection of record, on September 22, 1962, testified before the board that on that date he found 10 minors on the premises. (It was established that these minors were only having pizza and cokes and that no alcoholic beverages were requested or served.) Four of these minors testified before the board. It was uncontradicted that two of them had never been to the premises before and that the other two had been there only once or twice before with their parents. Counsel stipulated that the remaining minors would testify substantially the same as these four. In the hearing before the court of quarter sessions, licensees themselves made general statements indicating that on other occasions minors came to the licensed premises for food. But in regard to these occasions there was no evidence of names, dates, or conditions surrounding their visits. In short, outside of the finding of 10 minors on the premises on September 22, 1962, there was no specific evidence going to the necessary element of whether minors "frequent" the premises.
The board has a duty and the burden is upon it to establish the elements of a violation by a fair preponderance of the evidence. Moravian Bar, Inc. Liquor License Case, 200 Pa. Super. 231, 188 A.2d 805 (1963); Summit Hill Rod and Gun Club Liquor License Case, 184 Pa. Super. 584, 135 A.2d 781 (1957). That on one occasion there were on the premises 10 minors, who were there for the first time,[1] does not establish that minors "frequent" the premises.
*352 To "frequent", in the context of the relevant statutory provision, means to visit often or to resort to habitually or to recur again and again, or more than one or two visits. Cf. Easton's Liquor License Case, 142 Pa. Super. 49, 15 A.2d 480 (1940); In the Matter of Revocation of Hotel Liquor License No. H-1427 and Amusement Permit No. AP-12793, Issued to Mary Perry, "West End Hotel", 24 Cambria 133 (1962); Appeal of Atanas Gugoff, 57 Dauph. 105 (1945); Words and Phrases, "Frequent" (permanent ed. Vol. 17A). We do not mean to say that it must be found that the same minor or minors come to the premises habitually. But it must be established by a fair preponderance of specific evidence that, as a course of conduct, licensees permit minors to come on the premises. The record is insufficient to establish this.
We render no opinion on the nature of the defense of "proper supervision" in the absence of a record establishing frequenting.
Accordingly, we vacate the order of the Superior Court and reinstate the order of the court of quarter sessions directing the Liquor Control Board to revoke the suspension heretofore imposed.
Mr. Justice EAGEN would vacate the order of the Superior Court and would reinstate the order of the Court of Quarter Sessions of Cambria County on that court's opinion.
NOTES
[1] The Liquor Control Board cannot rely on the prior visits of certain of these minors to aid in establishing a violation. On the prior visits it was uncontradicted that the minors were accompanied by their parents. The statute expressly excepts such visits from contributing to a "frequenting" violation.
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871 S.W.2d 530 (1994)
The STATE of Texas, Appellant,
v.
Laureen Marie RUDD, Appellee.
No. 05-93-00438-CR.
Court of Appeals of Texas, Dallas.
February 7, 1994.
*531 Susan L. Free, McKinney, for appellant.
Randall B. Insenberg, Dallas, for appellee.
Before BAKER, MALONEY and MORRIS, JJ.
OPINION
BAKER, Justice.
Charged with driving while intoxicated, appellee moved the court to dismiss the information or to suppress the evidence. She alleged that the State destroyed favorable evidence. The court granted appellee's motion to suppress. The State contends the trial court erred in granting appellee's motion because appellee did not carry her burden under applicable Texas law. We reverse the trial court's order. We remand the cause for further proceedings.
PROCEDURAL HISTORY
The State charged appellee with driving while intoxicated. Before trial, she filed a motion to dismiss the information. She contended the State erased a videotape that was favorable to her defense. Alternatively, she moved the court to suppress all evidence of the video/audiotape. She also asked the trial court to suppress evidence of all events shown on the videotape that were not otherwise verifiable.
Appellee contended the arresting officer improperly advised her that she should take a breath alcohol test. She contended the arresting officer's advice violated her Sixth and Fourteenth Amendment rights under the U.S. Constitution and her right to counsel under the Texas Constitution.
The trial court denied the motion to dismiss, but granted the motion to suppress. The trial court suppressed the breath test results and all occurrences that the videotape would have shown. At the hearing, the State and appellee's attorney stipulated that the State accidentally erased the videotape. They also stipulated that the State did not act in bad faith when it erased the videotape.
THE ISSUE
The State contends the trial court erred in granting appellee's motion because appellee did not carry her burden under applicable Texas law.
THE MOTION TO SUPPRESS
A. Standard of Review
The trial judge is the sole trier of fact at a suppression hearing. The court is the judge of the witnesses' credibility and the weight given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). The reviewing court does not engage in its own factual review. We decide whether the record supports the trial court's findings. If the record supports the trial court's findings, we do not disturb them. We only consider whether the trial court improperly *532 applied the law to the facts. Romero, 800 S.W.2d at 543.
B. Applicable Law
State constitutions cannot subtract from the rights guaranteed by the United States Constitution. However, a state constitution can provide citizens additional rights. The federal constitution sets the floor for individual rights; state constitutions set the ceiling. Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991); LeCroy v. Hanlon, 713 S.W.2d 335 (Tex.1986).
1. Federal Law
The State's suppression of exculpatory evidence violates due process if the evidence is material to either guilt or punishment, irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963). When suppression of exculpatory evidence is an issue a defendant must show: (1) suppression by the prosecution after a defense request; and (2) the evidence was favorable and material. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706 (1972). To prove a violation of his due process rights, a defendant must show there is a reasonable chance that, had the State disclosed the evidence to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).
Courts apply a different standard when the State fails to preserve potentially useful evidence. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988); California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). In Trombetta, the Supreme Court found that the duty the Constitution imposes on the states to preserve evidence is limited. The Constitution limits the duty to evidence that the state could expect to play a significant role in the suspect's defense. Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533. The evidence's exculpatory value must be obvious before the State destroyed the evidence. The evidence must be such that the defendant would be unable to find comparable evidence by other available means. Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534.
More recently the Supreme Court considered the distinction between suppression of exculpatory evidence and failure to preserve useful evidence. See Youngblood, 488 U.S. at 51, 109 S.Ct. at 333. Youngblood involved the state's failure to preserve evidence and to perform certain tests on the evidence. The Supreme Court held that unless a criminal defendant can show bad faith by the police, failure to preserve potentially useful evidence is not a denial of due process. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337.
2. Texas Law
Before Heitman, Texas courts applied the Brady and Moore standards to determine whether suppression of exculpatory evidence violated article I, section 19. See Nastu v. State, 589 S.W.2d 434, 441 (Tex.Crim.App. 1979), cert. denied, 447 U.S. 911, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); Ransonette v. State, 550 S.W.2d 36, 39 (Tex.Crim.App. 1977); Smith v. State, 541 S.W.2d 831, 835 (Tex.Crim.App.1976), cert. denied, 430 U.S. 937, 97 S. Ct. 1565, 51 L. Ed. 2d 783 (1977); Hill v. State, 504 S.W.2d 484, 487 (Tex.Crim. App.1974), overruled on other grounds, 591 S.W.2d 837 (1979); Gamboa v. State, 774 S.W.2d 111, 112 (Tex.App.Fort Worth 1989, pet. ref'd); Gardner v. State, 745 S.W.2d 955, 958 (Tex.App.Austin 1988, no pet.). Texas courts of appeals continue to apply the Brady standard in deciding whether the State's suppression of exculpatory evidence violates an appellee's constitutional rights. See Barre v. State, 826 S.W.2d 722, 724 (Tex.App.Houston [14th Dist.] 1992, pet. ref'd).
We conclude the Brady standard applies to determine whether the State's suppression of exculpatory evidence violates article I, section 19 of the Texas Constitution. We hold that article I, section 19 provides the same protection as the United States Constitution when the issue is the State's failure to disclose exculpatory evidence.
Texas recognizes the different federal standards used in cases involving suppression of exculpatory evidence and failure *533 to preserve potentially useful evidence. Thomas v. State, 841 S.W.2d 399, 402 n. 5 (Tex.Crim.App.1992).[1] In Thomas, the court of criminal appeals recognized Texas courts should apply the Youngblood standard when dealing with a claimed due process violation because the State did not preserve potentially useful evidence. Thomas, 841 S.W.2d at 402 n. 5.
Before Heitman, two Texas courts of appeals dealt with the loss or destruction of evidence. Gamboa, 774 S.W.2d at 112; Gardner, 745 S.W.2d at 959. In Gardner, the State destroyed a tape recording of a potential witness and composite drawings of the suspect. Gardner claimed the State violated his due course of law rights and due process rights by not preserving the items. Gardner, 745 S.W.2d at 958. The Austin Court of Appeals decided Gardner before Youngblood. However, the court recognized and applied the Trombetta test to decide the issue of destruction or loss of evidence. Gardner, 745 S.W.2d at 959.
The Fort Worth Court of Appeals decided Gamboa after the United States Supreme Court decided Youngblood. In Gamboa, like this case, the State erased videotapes of the appellant after the State arrested her for driving while intoxicated. Gamboa moved to suppress all the evidence acquired after the first videotape. Gamboa, 774 S.W.2d at 112. The court recognized that when the State does not preserve potentially useful evidence a defendant must show bad faith to prove a violation of due process. Gamboa, 774 S.W.2d at 112. The court relied on Youngblood to support the bad faith requirement.
Since Heitman, one court of appeals has dealt with the issue of loss or destruction of potentially useful evidence. In Barre, the Fourteenth Court of Appeals recognized the Youngblood standard applies when the State does not preserve potentially useful evidence. Barre, 826 S.W.2d at 725. In Barre, the State destroyed a tape recording that the appellant had requested the State to preserve. Barre, 826 S.W.2d at 723. The court found that, as in Youngblood, the evidence was potentially useful. The evidence was not exculpatory or material on its face. The court found that because appellant did not show that the State destroyed the tape in bad faith, the trial court correctly overruled his motion to dismiss the information. Barre, 826 S.W.2d at 725.
Because Texas courts have applied the Youngblood test to destruction or loss of potentially useful evidence before and after Heitman, we conclude Texas courts should apply the Youngblood standard to determine violations of article I, section 19 of the Texas constitution when the State does not preserve potentially useful evidence. We hold that article I, section 19 provides the same protection as the Fourteenth Amendment of the United States Constitution when the issue is the State's failure to preserve potentially useful evidence.
B. Application of Law to the Facts
Appellee claims that erasing the videotape violated her due process and due course of law rights. The State claims the trial court erred because appellee did not carry her burden on her motion to suppress.
This case involves the State's failure to preserve potentially useful evidence. The videotape was potentially useful to appellee in proving her claim that the police officer erroneously advised her to take the breath test. However, the State and appellee stipulated that the State did not act in bad faith when it accidentally erased the videotape.
To show a violation of her due course of law or due process rights, appellee had to show the State acted in bad faith when it erased the videotape. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337; Barre, 826 S.W.2d at 724; Gamboa, 774 S.W.2d at 112. After stipulating that the State did not act in bad faith, appellee could not carry her burden.
The trial court abused its discretion in granting appellee's motion to suppress. The *534 trial court incorrectly determined appellee did not have to show bad faith on the part of the police as an element of her claimed violation. The trial court should have applied the Youngblood standard. The record does not support the trial court's order because appellee stipulated that the police did not act in bad faith. We sustain the State's point of error.
We reverse the trial court's order granting appellee's motion to suppress. We remand the cause to the trial court for further proceedings.
NOTES
[1] We recognize that footnotes in court of criminal appeals opinions are merely dicta. Young v. State, 826 S.W.2d 141, 144 n. 5 (Tex.Crim.App. 1991). However, we consider the statement in Thomas recognizing the additional element of bad faith when dealing with the State's failure to preserve potentially useful evidence is persuasive to our determination of this issue.
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139 N.J. 536 (1995)
655 A.2d 1382
NEW JERSEY STEEL CORPORATION, A CORPORATION OF THE STATE OF DELAWARE, PLAINTIFF, AND HARTFORD INSURANCE COMPANY, AS SUBROGEE AND/OR ASSIGNEE OF NEW JERSEY STEEL CORPORATION, PLAINTIFF-INTERVENOR-RESPONDENT,
v.
RUPERT WARBURTON, RITA SINGH WARBURTON, MAPICS, INC., DOING BUSINESS AS MAPICS UNLIMITED, INC., RUPERT WARBURTON, INDIVIDUALLY AND DOING BUSINESS AS MPS, MM SYSTEMS, M. MINIMICRO, MINIMICRO MAPICS, INC. AND MAPICS UNLIMITED, INC., JOHN DOE (A FICTITIOUS NAME) AND ABC CORPORATION (A FICTITIOUS CORPORATION), DEFENDANTS, AND MIDLANTIC NATIONAL BANK, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued January 3, 1995.
Decided April 12, 1995.
*538 Gregg S. Sodini argued the cause for appellant (Cuyler, Burk & Matthews, attorneys).
Marc R. Lepelstat argued the cause for respondent (Lambert & Weiss, attorneys).
The opinion of the Court was delivered by GARIBALDI, J.
This appeal concerns the allocation of check-fraud losses under specific provisions of Articles 3 and 4 of the Uniform Commercial Code ("UCC"), adopted in New Jersey as N.J.S.A. 12A:3-406 and N.J.S.A. 12A:4-406. The Court must allocate those losses between a corporation whose negligence allowed the defalcation to occur and a depository-payor bank that accepted checks for deposit without following its own procedures for inspecting the endorsements on those checks. Defendant Midlantic National Bank ("Midlantic Bank") failed to discern endorsements that did not *539 correspond to the payees as well as forged maker signatures, thus violating its duty to pay an instrument "in accordance with reasonable commercial standards" and to exercise "ordinary care." Plaintiff, New Jersey Steel Corporation ("N.J. Steel"), failed to examine its monthly statements, thus violating its statutory and contractual duty "to exercise reasonable care and promptness to examine the statements and items to discover ... unauthorized signature or any alteration on an item."
I
Prior to 1984, defendant Rupert Warburton ("Warburton") was an employee of N.J. Steel. In 1984, Warburton formed his own independent computer consulting business that operated under the trade name of Mapics Unlimited. N.J. Steel hired Warburton as its independent computer consultant, thus allowing him access to its computerized financial and accounting systems. With that access, Warburton devised and implemented a plan to defraud N.J. Steel. Warburton's plan began with "waste checks" blank checks that were left in N.J. Steel's computer room and ended with deposits into accounts opened by Warburton for his personal and business use. Warburton would write those checks to fictitious payees whose names resembled, but were not identical to, the trade name of his own consulting business, which was the name on the depositing bank account. For example, he made the checks payable to "M.P.S." and "M.M. Systems," but the name of his business and corresponding bank account was "Mapics Unlimited." Warburton was the sole authorized signatory for the Mapics account. Next he would fill in an amount payable that was identical to the amount of a legitimate, previously issued check. Warburton then would forge the name of one or both of the authorized signatories for N.J. Steel's account at Midlantic Bank.
He would then endorse each check with only the words "For deposit" or "For deposit only," followed by XXXXXXXXX, the account number for Mapics Unlimited, rather than the account number for the payee. Indeed, the name of the fictitious payee did not appear *540 in the endorsement; no one signed the endorsement on behalf of that payee; and the checks were not endorsed for deposit into an account in the name of the payee. The tellers made no attempt to verify whether account XXXXXXXXX belonged to the named payee of each check. Instead, each forged check was subsequently deposited in the Mapics Unlimited account at the Rossmoor branch of Midlantic Bank, and the bank transferred funds from N.J. Steel's account to Warburton's account. Midlantic Bank, therefore, was both the payor and the depository bank for those checks.
To complete his plan, Warburton would obtain N.J. Steel's monthly statements from Midlantic Bank, remove and destroy each forged check, and replace it with the corresponding previously negotiated check. He would also adjust N.J. Steel's computer records to reflect that the only payee was that of the corresponding previously negotiated check. From November 1989 to October 1990, Warburton completed this scheme fourteen times, depositing checks with sums ranging from $19,083.40 to $64,146.98, for a personal gain of $571,931.90. N.J. Steel did not discover that loss until January 1991, whereupon it immediately notified Midlantic Bank.
One of the reasons Warburton was able to escape detection for so long was that in early 1990, he had convinced N.J. Steel to abandon its manual check-reconciliation process in favor of a computerized process he conducted himself. Previously, N.J. Steel and Midlantic Bank had entered into an account reconciliation plan that provided in pertinent part:
The Corporation agrees it will examine its statement and items for unauthorized signatures, items paid but not issued or alterations. Failure by the Corporation to notify the Bank of any unauthorized signatures, items paid but not issued or alterations within 14 days of the Corporation's receipt of statement and items will bar the Corporation's right to assert a claim against the Bank for subsequent unauthorized signatures, items paid but not issued or alterations, by the same person.
The Corporation understands that Midlantic will exercise reasonable care in providing the Account Reconciliation Plan described herein on behalf of the Corporation. The Corporation hereby agrees that Midlantic shall have no liability regarding any item processed with reasonable care under this agreement. *541 Although the corporation received all the monthly statements and cancelled checks in a timely manner, N.J. Steel failed to perform a manual reconciliation or to examine its cancelled items for unauthorized signatures pursuant to its agreement with Midlantic Bank.
In addition to that agreement between the parties, Midlantic Bank adopted and put into place institutional policies that governed its acceptance of customers' deposits. Midlantic Bank's Policy 5.1 provides, "For deposits containing 5 checks or less, the teller must read each endorsement to make sure that it is correct.... . By reading endorsements, the teller is responsible for verifying endorsements on all checks deposited." Policy 5.1 also provides, "Any single check over $10,000 must be initialed by two tellers (the one accepting the deposit and another teller evidencing a thorough review of the transaction) on the back." None of the checks at issue bear such initials. Midlantic Bank's Policy 7.4 provides, "[c]hecks drawn to the order of a corporation must be deposited in an account bearing the same title and cannot be transferred by endorsement to any individual or another company."
In January 1991, N.J. Steel sued Warburton, Midlantic Bank, and other defendants seeking damages in connection with the forged checks. N.J. Steel alleged in its amended complaint that Midlantic Bank was liable under several alternative theories: strict liability for accepting and negotiating checks without properly authorized signatures (count 4); strict liability for accepting checks without proper endorsements (count 5); negligently accepting checks without properly authorized signatures (count 6); negligently accepting checks without endorsements of the named payees (count 7); and failure to act within generally accepted commercial practices in debiting N.J. Steel's account for checks having forged signatures and missing proper endorsements (count 8). Midlantic Bank asserted various affirmative defenses and cross-claims for indemnification and contribution, including that N.J. Steel's action was barred or diminished in whole or part *542 because its loss had been caused by its own contributory or comparative negligence. In February 1991, N.J. Steel obtained a Consent Judgment against all defendants except Midlantic Bank. Subsequently, Hartford Insurance Company intervened in the action as partial subrogee and/or assignee of N.J. Steel against each defendant, including Midlantic Bank.
After extensive discovery, the case was tried without a jury. At trial an employee of Midlantic Bank testified to the bank's internal procedures for inspection of deposited checks for proper endorsements. He testified that tellers must read each endorsement if the deposit contained five or fewer checks, and must fan the checks to determine the presence or absence of endorsements if the deposit contained more than five checks. Moreover, under the same policy directive, any single check for more than $10,000 must be examined by two tellers. The witness also testified that if the account number in an endorsement on the reverse side of a check did not match the payee's account number, the teller was required to reject the check as incorrectly endorsed under Policy 5.1. N.J. Steel's expert compared the bank's institutional policies to the industry standards and concluded that the bank had been negligent because it had not followed those policies.
The trial court found that the subject checks were not properly endorsed because the endorsements did not contain the name of the payee and the checks were endorsed for deposit "into an account of one other than the [named] payee." The trial court further found that Midlantic Bank had failed to follow its own written policy and procedures concerning inspection of checks for proper endorsements: "I find that [Midlantic's policy] was not followed since a thorough review of these checks by a trained teller would have revealed the inadequacy of the endorsements." Finally, based on the testimony of N.J. Steel's expert, the trial court determined that Midlantic Bank's failure to review properly the endorsements constituted a violation of the "ordinary procedures in the banking industry" and that Midlantic Bank's acceptance of the checks without proper endorsements was a "proximate *543 cause" of N.J. Steel's loss. The trial court, however, refused to find that Midlantic Bank had violated its Policy 7.4.
The trial court concluded that since Midlantic Bank failed to exercise ordinary care in paying the subject checks, it could not invoke N.J.S.A. 12A:4-406 as a defense. In assessing damages, the trial court held that plaintiff's claim with respect to the first forged check was time-barred under N.J.S.A. 12A:4-406(4). The trial court calculated the total damages to be $247,264.15. Finally, the trial court held that N.J. Steel was not entitled to recover prejudgment interest because of "the equities of the situation." In reaching that conclusion, the trial court found that N.J. Steel had failed to examine its account statements and thereby contributed to the perpetration of the fraud.
The Appellate Division affirmed in a per curiam opinion "substantially for the reasons stated by [the trial court]." We granted Midlantic Bank's petition for certification. 137 N.J. 166, 644 A.2d 614 (1994).
II
Although both N.J.S.A. 12A:3-406 and N.J.S.A. 12A:4-406 govern this case, we discuss first N.J.S.A. 12A:4-406.
12A:4-406. Customer's Duty to Discover and Report Unauthorized Signature or Alteration.
(1) When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.
(2) If the bank establishes that the customer failed with respect to an item to comply with the duties imposed on the customer by subsection (1) the customer is precluded from asserting against the bank
(a) his unauthorized signature or any alteration on the item if the bank also establishes that it suffered a loss by reason of such failure; and
(b) an unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding fourteen *544 calendar days and before the bank receives notification from the customer of any such unauthorized signature or alteration.
(3) The preclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s).
The provisions of N.J.S.A. 12A:4-406 are to be read in conjunction with one another. N.J.S.A. 12A:4-406(1) establishes the customer's duty to discover and report unauthorized signatures or alterations. N.J.S.A. 12A:4-406(2) precludes the customer from making various assertions against the bank if the bank has established the customer's breach of that duty as outlined in provision (1). However, under N.J.S.A. 12A:4-406(3), a bank may assert that preclusion only if it paid the check in "good faith" and the customer is unable to establish "lack of ordinary care on the part of the bank in paying the item(s)." Therefore, provisions (1) and (2) are inoperative if the customer can establish that the bank has also been negligent. In a transaction where both parties might be negligent, the loss stemming from the combined effect of those three provisions is on the last party found negligent: the payor bank (also referred to as the drawee bank). That is made clear by the New Jersey Study Comment to N.J.S.A. 12A:4-406(3):
3. Subsection 4-406(3) makes the rules of subsections 4-406(1) and (2) inoperative if the bank, itself, has been negligent. In other words, a negligent bank cannot put the loss resulting from a forgery or the like onto the customer on the ground that the customer also has been negligent. There is no New Jersey statutory or case law precisely on point, but the rule of subsection 4-406(3) seems to be simply an application of the general rule of contributory negligence; where both the plaintiff and the defendant have been negligent, let the loss remain where it has fallen.
That comment has been cited with approval in Faber v. Edgewater Nat'l Bank of Edgewater, 101 N.J. Super. 354, 359, 244 A.2d 339 (Law Div. 1968), in which the court reasoned that "sub-section 4-406(3) makes the rules regarding due diligence inoperative if the bank, itself, has been negligent. In other words, a negligent bank cannot put the loss resulting from a forgery or the like onto the customer on the ground that the customer also has been negligent." Id. at 359, 244 A.2d 339 (citing N.J.S.A. 12A:4-406 Study Comment.)
*545 In reviewing the same UCC provision in effect in New York, the New York Court of Appeals held that "[u]nder (both UCC 4-406 and 3-406), when both the bank and its customer have been negligent and even when the customer is by far the more negligent party, the entire loss may still be asserted against the bank." Putnam Rolling Ladder Co. v. Manufacturers Hanover Trust Co., 74 N.Y.2d 340, 547 N.Y.S.2d 611, 546 N.E.2d 904 (1989) (citing David Morris Phillips, The Commercial Culpability Scale, 92 Yale L.J. 228, 240 n. 62 (1982)).
III
12A:3-406. Negligence Contributing to Alteration or Unauthorized Signature. Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's or payor's business. L. 1961, c. 120, § 3-406.
N.J.S.A. 12A:3-406 is broader in scope than N.J.S.A. 12A:4-406. Under N.J.S.A. 12A:3-406, a customer "who by his negligence substantially contributes" to the loss is estopped from recovering against a payor bank that is required to "pay[] the instrument in good faith and in accordance with ... reasonable commercial standards." Again, the initial loss is imposed on the customer who is negligent. However, the effectiveness of the bar to recovery is conditioned on the payor bank having acted pursuant to the reasonable commercial standards of the banking business.
Under N.J.S.A. 12A:3-406, the slightest contributory negligence on the part of the bank makes the defense of the customer's negligence unavailable. Donald J. Rapson, Loss Allocation in Forgery and Fraud Cases: Significant Changes Under Revised Articles 3 and 4, 42 Ala.L.Rev. 435 (1991). Significantly, the comments to revised article 3, approved by the National Conference of Commissioners on Uniform State Laws and the American Law Institute in 1990, explain: "The `substantially contributes' test is meant to be less stringent than a `direct and proximate *546 cause' test. Under the less stringent test the preclusion should be easier to establish." UCC Revised Article 3, § 3-406 cmt 2, 2 U.L.A. 105 (1991). Although "reasonable commercial standards" are not defined in that section of the New Jersey law, the New Jersey Study noted that "any bank which takes or pays an altered check which ordinary banking standards would require it to refuse cannot take advantage of the estoppel." New Jersey Study Comment to N.J.S.A. 12A:3-406(6) (1994).
Therefore, a negligent customer may shift total liability to the payor bank by showing that the bank negligently failed to conform to industry standards in paying the item contrary to the customer's order. At least one court has held that it is commercially unreasonable to accept for deposit a check made out to a corporate entity but endorsed for deposit to a personal account. See In re Lou Levy & Sons Fashions, Inc. Litig., 988 F.2d 311, 313-14 (2d Cir.1993) (applying New Jersey law, court found bank negligent in accepting checks with endorsements containing account number for individual account where named payee was corporation; bank therefore could not invoke drawer's negligence as preclusion under § 3-406). Another court has stated "the [payor] bank has a duty to make payment only to the payees named in its depositors' checks or to their order. Consequently, the [depository] bank as a general rule has a duty to determine the identity of the payee." Hanover Ins. Cos. v. Brotherhood St. Bank, 482 F. Supp. 501, 505 (D.Kan. 1979).
A lack of ordinary care on the part of the bank paying items under this provision of the UCC "may be established by proof either that the bank's procedures were below standard or that the bank's employees failed to exercise care in processing the items." First Nat'l Bank & Trust Co. v. Cutright, 189 Neb. 805, 205 N.W.2d 542, 545 (1973) (cited in UCC § 3-406, at n. 9). For a payor bank to escape liability, it must establish that it acted in accordance with reasonable commercial standards and exercised ordinary care. Schoenfelder v. Arizona Bank, 165 Ariz. 79, 796 *547 P.2d 881, 890 (1990); First Bank & Trust of Jonesboro v. Vaccari, 288 Ark. 233, 703 S.W.2d 867 (1986).
IV
Pursuant to the Account Reconciliation Plan Operating Agreement that it had entered into with Midlantic Bank, and under N.J.S.A. 12A:4-406(1), N.J. Steel owed a duty to Midlantic Bank to examine within a reasonable time any cancelled checks and account statements received and to give timely notice of any irregularities. Western Union Tel. Co. v. Peoples Nat'l Bank, 169 N.J. Super. 272, 278, 404 A.2d 1178 (App.Div. 1979). N.J. Steel is not excused from that duty by having entrusted its performance to an incompetent or dishonest agent, like Warburton. Faber, supra, 101 N.J. Super. at 360, 244 A.2d 339.
By its own admission, N.J. Steel was negligent in supervising Warburton. As an independent computer consultant, Warburton advised N.J. Steel to abandon its manual check-reconciliation process in favor of a computerized process that he conducted himself. In so doing, N.J. Steel put Warburton in a position to perpetrate his fraudulent plan, and then failed to perform both its statutory obligations under N.J.S.A. 12A:4-406(1) and its contractual duties under the account-reconciliation plan with Midlantic Bank. Thus, under the statute, N.J. Steel would be liable for the checks due solely to its duty to discover and report unauthorized signatures or alterations, if Midlantic Bank could affirmatively establish that N.J. Steel's "negligence in inspecting the statements or giving notice of the forgeries caused the loss." Schoenfelder, supra, 796 P.2d at 884.
However, any lack of reasonable care and promptness in the conduct of N.J. Steel "in examining its bank statements is of no weight under the statutory scheme if the bank is proven to have failed to use ordinary care in paying the items." Hanover, supra, 482 F. Supp. at 505 (citing Taylor v. Equitable Trust Co., 269 Md. 149, 304 A.2d 838 (1973)). N.J. Steel can shift liability solely to Midlantic Bank by proving the bank's lack of ordinary care under *548 N.J.S.A. 12A:4-406(3). Under that provision, the bar to recovery by N.J. Steel from N.J.S.A. 12A:4-406(1) and (2) does not apply if the payor bank failed to exercise ordinary care in paying an item. Hanover, supra, 482 F. Supp. at 505.
Midlantic Bank is both the depository and payor bank. Because a payor bank "has a duty to make payment only to the payees named," a depositary bank "has a duty to determine the identity of the payee" of its depositor's checks. Ibid. (citing American Nat'l Bank of Denver v. First Nat'l Bank of Denver, 130 Colo. 557, 277 P.2d 951 (1954); First Nat'l Bank of Nevada v. Dean Witter & Co., 84 Nev. 303, 440 P.2d 391 (1968); Maynard Inv. Co. v. McCann, 77 Wash.2d 616, 465 P.2d 657 (1970)). If it had acted only as payor bank, Midlantic Bank could have recovered from the depository bank. E.g., Nutt v. Chemical Bank, 231 N.J. Super. 57, 61, 555 A.2d 8 (App.Div. 1989). However, Midlantic Bank assumed dual roles of responsibility. Thus, Midlantic Bank's position that it has no duty to examine the checks as to the named payees is "totally unacceptable." Hanover, supra, 482 F. Supp. at 505. Instead, that "bank's lack of ordinary care may be demonstrated by proof that the bank's procedures were below the standard or that the bank's employees failed to exercise due care in processing the items." Ibid. (citing Cutright, supra, 205 N.W.2d at 542).
The trial court found N.J. Steel had demonstrated that Midlantic Bank failed to exercise ordinary care by proof that although the bank had developed institutional procedures for deposits that would meet the appropriate standard of care, that bank's employees failed to exercise due care in following those procedures. They failed to verify the endorsement appearing on each check and to ensure that the checks were endorsed to the named payee. Midlantic Bank's own institutional policies required its tellers to check carefully the endorsements of deposits of less than five checks and to seek supplemental review from another teller with endorsements on checks for more than $10,000. Therefore, the checks at issue merited careful review by Midlantic Bank's employees *549 because of the amounts as well as the quantity of the deposited checks. However, Midlantic Bank did not check the endorsements. Midlantic Bank accepted large checks for deposit that bore neither the business account's name as payee nor an endorsement matching the payee of the check.
Midlantic Bank failed to prove that it acted in accordance with industry standards as well as its own institutional policies. In its role as depository bank, Midlantic Bank attempted to do so only through cross-examination of experts who acknowledged that tellers and other bank personnel often interpret literally the industry standard of "Know your endorser" by ignoring institutional policies for a customer who frequented the bank and could chit-chat with the teller about his family. Although "local banking practices may be useful in determining the standard required," we refuse to find that the practices of individual tellers might provide support for minimal standards that, if actually put in place, would "amend the statutory requirements." Hanover, supra, 482 F. Supp. at 506. Moreover, the testifying experts concluded that such common practice by tellers or other bank personnel does not comport with reasonable commercial standards. Thus, notwithstanding any prevailing local custom in the banking industry, we agree with the trial court that Midlantic Bank's tellers did not conduct a thorough review of the endorsements, which would have revealed the inconsistency between the payee and the authorized payee on the account number written as an endorsement.
Although not relied on by the lower courts in holding Midlantic Bank liable, that Warburton forged the names of the authorized signatories on all checks is undisputed. N.J. Steel's expert testified that the normal procedure for the payor bank's processor would have been to compare the maker signatures found on a quantity of checks for the corporation in question. For example, viewing thirty checks in that manner would highlight any differences or similarities in maker signatures. When more than one signature is identified on checks for one corporation, the bank's processor would then check them against the authorized *550 signature card on file to ascertain the number of authorized signatures. Under that example, the expert concluded that any processor who used such procedures would have discovered the fraud in this case. Therefore, in addition to missing the irreconcilable differences in the endorsement account numbers and the varied but fraudulent payees, Midlantic Bank's employees also missed the unauthorized signature on each check. Thus, the expert concluded that those checks were not properly payable. Although Midlantic Bank's expert testified that the forgeries were so good that a lay person would fail to detect them, we question whether a processor in a bank is such a lay person. Based on the record, we conclude that one could find Midlantic Bank also liable to N.J. Steel for its failure to catch the forged maker signatures, under both N.J.S.A. 12A:3-406 and 4-406.
Midlantic Bank argues that this case is one of double forgery and asserts that under that theory, it would not be liable. See Brighton, Inc. v. Colonial First Nat'l Bank, 176 N.J. Super. 101, 115, 422 A.2d 433 (App.Div. 1980) (adopting rule from Perini Corp. v. First Nat'l Bank, 553 F.2d 398 (5th Cir.1977), which requires double forgery cases to be treated "as if they involved forged drawer's signatures alone"), aff'd p.c.o.b., 86 N.J. 259, 430 A.2d 902 (1991). However, the record does not indicate a case of double forgery. Double forgery consists of a forged maker's signature and a forged endorsement. While Warburton certainly forged the names of authorized signatories of the corporation's account, his endorsement consisted of the words "For deposit only" followed by a valid account number for his consulting business. That endorsement was not forged. Here the problem resulted from the teller's failure to use the endorsement to compare the authorized payees of that account with the payee on the check.
In addition to the underlying facts, cases of double forgeries are problematic for a reason inapplicable to this case: a decision to treat a case as one of a forged signature results in loss to the payor bank whereas treatment by the courts as a forged endorsement *551 shifts the loss to the depository bank on its warranty covering forged endorsements. See Rapson, supra, 42 Ala.L.Rev. at 468. As has been outlined above, Midlantic Bank is both payor and depository bank. Therefore, its argument of double forgery is confusing because liability falls on it due to its roles as a payor and a depository bank, rather than the degree of forgery involved. The rule adopted in Brighton, supra, is distinguishable from the present case because of the type of negligent conduct as well as the different factual scenario. See Hanover, supra, 482 F. Supp. at 508. Thus, we find that the holding of Brighton, supra, is inapplicable to this situation.
N.J.S.A. 12A:3-406 requires that the payor bank "pay[] the instrument in good faith and in accordance with ... reasonable commercial standards." N.J.S.A. 12A:4-406(3) requires that the payor bank exercise "ordinary care ... in paying the item(s)." Midlantic Bank failed to meet the standards of both statutes. Payor banks have a duty to ascertain the identity of the payee. While payor banks are not in a position to determine the authenticity of an endorsee's signature, they can and should verify whether the endorsement matches the payee name. The Hanover court explained:
We find the [payor] bank's position that it has no duty to examine the check as to the named payee to be totally unacceptable. The [payor] bank has a duty to make payment only to the payees named in its depositors' checks or to their order. Consequently, the [payor] bank as a general rule has a duty to determine the identity of the payee.
[482 F. Supp. at 505.]
Accordingly, Midlantic Bank had a duty to examine the endorsements as the payor bank.
Given the tremendous volume of checks that must be processed by even the smallest of banks, whether sight review of checks should be required in the modern banking era is a difficult issue, but not an issue that this Court must resolve. The trial court, in finding that Midlantic Bank failed to exercise ordinary care, did not impose a general duty on all banks to inspect endorsements visually. As the trial court found, Midlantic Bank had voluntarily *552 assumed a certain standard of care in promulgating written policies and procedures for accepting checks. Under Midlantic Bank's procedures, the patent discrepancy between the payee name and the account name required Midlantic Bank to reject the deposit or at the very least to make further inquiries about the identity of the payee. Hence, Midlantic Bank breached its duty of care when its tellers failed to follow its own official procedures. Therefore, this Court should not disturb the trial court's finding that Midlantic Bank failed to exercise ordinary care when it accepted for deposit checks that its own written procedures required it to reject.
In conclusion, Midlantic Bank failed to exercise ordinary care in paying the items at issue and thus may not invoke N.J. Steel's negligence in defense. Midlantic Bank is therefore strictly liable for paying items that were not "properly payable." Under both N.J.S.A. 12A:3-406 and 4-406, such negligence removes any defense that Midlantic Bank might have against N.J. Steel. Therefore, the customer's assertion of contributory negligence by the bank allows "the loss [to] remain where it has fallen" on Midlantic Bank. Although the result might seem unjust, it is in accordance with the law governing the claims at issue as well as with the particular facts of this case where defendant bank was "doubly negligent" as a payor and depository bank to its customers. As this type of "double agent," Midlantic Bank had two opportunities to catch the fraud perpetrated by Warburton on N.J. Steel before the reconciliation agreement directed N.J. Steel to review carefully its monthly statement. Because Midlantic Bank failed to conform with commercially reasonable banking standards and to exercise ordinary care, we affirm the judgments of both the trial court and the Appellate Division.
We note that the Legislature passed and the Governor on February 15, 1995, signed into law S. 344, now L. 1995, c. 28, that revises Articles 3 & 4 of the UCC and embraces the spirit of comparative negligence. However, that Act does not take effect *553 until the first day of the first calendar month which follows the 90th day after enactment.
The judgment of the Appellate Division is affirmed.
For affirmance Chief Justice WILENTZ, and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 6.
Opposed None.
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871 S.W.2d 325 (1994)
315 Ark. 722
SOUTH COUNTY, INC., Appellant,
v.
FIRST WESTERN LOAN CO. and John Taylor Hampton, Appellees.
No. 93-553.
Supreme Court of Arkansas.
February 7, 1994.
Stephen M. Sharum, Fort Smith, Mark Ford, Lincoln, NE, for appellant.
Michael Stubblefield, William H. Sutton, Fort Smith, William A. Waddell, Jr., Little Rock, for appellees.
CORBIN, Justice.
This is the second time this case has been appealed to this court. Previously, we dismissed the appeal for lack of an appealable order. South County, Inc. v. First Western Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993). The facts are reported in that decision and are repeated here for convenience:
Appellant, South County Inc., was formed in July 1985, to develop the South County Project. The South County Project was to be a mixed-use development in Greenwood, Arkansas. Appellant alleges that the appellees, First Western Loan Company and John Hampton, an officer of First Western, represented in January 1986, that they would provide the financing for the development. Appellant argues that relying on this representation, it expended a lot of time and money to further the development of the project. In July of 1986, the appellees advised the appellant that they would not fund the development of the project. Appellant was unable to obtain other financing, and the project failed. The appellees contend that they never issued a loan commitment and contend that First Western's role was to help assemble the loan package and take the package to potential investors.
*326 In July of 1988, appellant filed suit against the appellees alleging a tort action for negligent misrepresentation and constructive fraud. Appellant also alleged a cause of action for breach of contract against First Western. Appellant sought recovery for its damages as well as punitive damages. Uerling & Associates, a creditor of the appellant, filed a motion to intervene and a complaint in intervention on November 4, 1988. In this motion, Uerling contended that the appellant was indebted to it for engineering and surveying services conducted on the project in the amount of $46,210.69. On November 8, 1988, Uerling's motion was granted without objection.
The appellees subsequently filed a motion for summary judgment. The trial court granted a partial summary judgment on October 9, 1991, on the tort causes of action and claim for punitive damages against appellees First Western and John Hampton. This completely eliminated appellee John Hampton from the lawsuit but left alive the appellant's contract cause of action against First Western. In the order granting partial summary judgment, the trial judge stated that under ARCP Rule 54(b) there was no just reason for delay of the appeal of this decision. However, no mention was made of Uerling's complaint in intervention. Appellant took a voluntary dismissal without prejudice of the breach of contract action against First Western, which was filed on October 31, 1991. Again, there was no dismissal of Uerling's complaint in intervention.
We dismissed the first appeal because the trial court had not considered the intervenor's claim when granting the partial summary judgment. Subsequent to our dismissal, the trial court entered an order dismissing with prejudice the intervenor's complaint and reaffirming the previous summary judgment on the issues of negligent misrepresentation, constructive fraud and punitive damages. The parties had stipulated that the breach of contract claim which was non-suited by appellants on October 31, 1991, was now statute barred. Thus, the trial court's order dismissed with prejudice the breach of contract claim. The order is now final and appealable. Appellant makes three assignments of error in the proceedings below. We find no error and affirm.
As its first point of error, appellant contends the trial court should not have granted summary judgment on the claim for negligent misrepresentation. Appellant correctly points out that Arkansas has never expressly recognized a cause of action for negligent misrepresentation. However, appellant argues that imposition of liability for negligent misrepresentation in a commercial setting currently represents the mainstream of American law, and asks this court to expressly recognize such a cause of action citing The Restatement (Second) of Torts § 552 (1976) and cases from other states that have adopted section 552.
We decline to recognize the tort of negligent misrepresentation. Misrepresentation, also commonly referred to as deceit or fraud, has been an intentional tort in Arkansas for well over a century. See e.g. Hanger v. Evins, 38 Ark. 334 (1881). In Gregory v. Consolidated Utilities, Inc. 186 Ark. 406, 53 S.W.2d 854 (1932), this court observed that:
"Fraud involves the idea of intentional deception, and exists where there is misrepresentation made with intent to deceive, or with actual knowledge of its falsity.... Proof of a mere naked falsehood or representation is not enough even though the complaining party relied on it and sustained damages, but, in addition thereto, the false statement must have been knowingly or intentionally made."
Id., 186 Ark. at 411, 53 S.W.2d at 856. The foregoing observations hold true today. We see no need to recognize a new cause of action for negligent misrepresentation.
We conclude the trial court did not err in granting summary judgment on the claim for negligent misrepresentation. No such cause of action exists in this state. Where no cause of action is alleged upon which relief can be granted, we need not consider whether issues of material fact existed. Brandt v. St. Vincent Infirmary, 287 Ark. 431, 701 S.W.2d 103 (1985).
*327 Next, appellant contends the trial court should not have granted summary judgment on the claim for constructive fraud. Appellant contends that appellees had a duty to appellant arising out of a confidential relationship or a situational fiduciary relationship that existed between them. Appellant further argues this duty was breached by failing to give sound financial advice and by failing to provide or place development financing.
The burden in a summary judgment proceeding is on the moving party and all proof submitted must be viewed in the light most favorable to the respondent. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). Once the movant makes a prima facie showing of entitlement to judgment as a matter of law, the respondent must show a genuine issue as to a material fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992). On appeal, we need only consider whether the granting of summary judgment was appropriate based on whether the evidentiary items presented left a material question of fact unanswered. Id.
While this court has described "constructive fraud" as being "based upon a breach of a legal or equitable duty which the law declares to be fraudulent because of its tendency to deceive others, regardless of the moral guilt, purpose or intent of the fraudfeasor," Miskimins v. City Nat'l Bank, 248 Ark. 1194, 1204, 456 S.W.2d 673, 679 (1970), the breach of a fiduciary duty is not the only element, nor is it always an essential element, required to prove a case of constructive fraud. To the contrary, the test for constructive fraud, also called "legal fraud" or "fraud in law" has been defined as the making of misrepresentations by one who, not knowing whether they are true or not, asserts them to be true without knowledge of their falsity and without moral guilt or evil intent. Cardiac Thoracic & Vascular Surgery P.A. Profit Sharing Trust v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992); Titan Oil & Gas Inc. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974); Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965); Evatt v. Hudson, 97 Ark. 265, 133 S.W. 1023 (1911).
Thus, while this court has found constructive fraud to exist in cases of rescission of contracts or deeds and breaches of fiduciary duties, the fact remains that, as with the tort of fraud, the tort of constructive fraud requires that material misrepresentations of fact be made. In the present case, appellant has failed to prove that appellees made any material false statements or misrepresentations of fact. Appellant did offer numerous affidavits in response to the motion for summary judgment emphasizing the meetings between the parties and appellees' desire to participate in and profit from the South County Project. However, appellant did not offer any proof of a false statement or commitment from appellees. The deposition of Roger Beshears, one of the founders of appellant, was attached to the response to the motion for summary judgment and illustrates appellant's failure of proof. Roger Beshears stated that appellees did not say, "We commit to provide financing," but instead indicated appellees stated they could get appellant some financing. Such a statement amounts only to "puffing" of appellees' ability to provide financing, not a commitment to do so nor a representation that it would do so. Assuming arguendo that the statements were commitments to provide financing, they would only be promises of future conduct in a contractual setting and not misrepresentation that give rise to fraudulent conduct. In P.A.M. Transport, Inc. v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993), we said:
In the context of negotiating a contract, a misrepresentation sufficient to form the basis of a deceit action may be made by one prospective party to another and must relate to a past event, or a present circumstance, but not a future event. "An assertion limited to a future event may be a promise that imposes liability for breach of contract or a mere prediction that does not, but it is not a misrepresentation as to that event."
Id., 315 Ark. at 240, 868 S.W.2d at 240 (citations omitted).
Appellant did not meet its burden of establishing that appellees made any misrepresentations that would give rise to a cause of action for constructive fraud. Therefore appellant did not rebut appellees' prima facie *328 establishment of entitlement to summary judgment with proof of issues of material fact. We cannot say the trial court erred in granting appellees judgment as a matter of law on the constructive fraud claim.
Lastly, appellant contends the trial court erred in granting summary judgment on its claim for punitive damages. Punitive damages may be awarded when a tortfeasor has acted with malice, intent to cause injury, or with conscious indifference such that malice could be inferred. Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984). Our affirmance of the summary judgment on the two claims asserted renders this point moot. If appellees have not committed any tort and are not liable to appellant in any way, appellant has no claim for punitive damages.
The order granting summary judgment is affirmed.
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544 S.W.2d 640 (1976)
J. H. (Dick) CALFEE, Petitioner,
v.
D. G. DUKE et al., Respondents.
No. B-5897.
Supreme Court of Texas.
November 24, 1976.
Rehearing Denied December 22, 1976.
Darden, Fowler & Creighton, William E. Fowler, Conroe, Kronzer, Abraham and Watkins, W. James Kronzer, Jr., Houston, for petitioner.
John W. Overton, Houston, Rex G. Fortenberry, Beaumont, for respondents.
REAVLEY, Justice.
The only remaining issue in this trespass to try title suit is whether the evidence raises a fact issue of the possessor's claim of right to mature his limitation title under the ten year statute. The trial court after a non-jury trial rendered judgment in favor of the adverse possessor, J. H. (Dick) Calfee. The Court of Civil Appeals held that, by his own testimony, Calfee conclusively established that his claim to the disputed land was not "adverse" under the ten year statute; the trial court's judgment was therefore reversed and rendition of judgment *641 was ordered in favor of 21 parties in accordance with their respective interests as heirs of J. H. Duke. 533 S.W.2d 839. We will affirm the judgment of the trial court.
The land in dispute consists of 24.744 acres which is fenced together with 223.8 acres known as the "Moorefield homestead." Calfee acquired a deed in 1946 which describes the conveyed land as "embracing what has for many years been known as the Moorefield Homestead," and further sets forth a full metes and bounds description. This same description has been used in a chain of deeds which are contained in this record and go back as far as 1894. That chain includes conveyances, prior to 1920, to and from Calfee's parents. We do not know how the disputed 24 acres came to be included under the same fence with the Moorefield homestead land. The record does not show a chain of title for the disputed land. There is no evidence whatsoever on the ground of any fence or other boundary sign along the east margin of the Moorefield homestead, as measured by the metes and bounds distances, and the west margin of the 24 acres.
The Duke heirs introduced into the record a 1935 judgment which terminated a lawsuit of very many parties affecting a very large amount of land. That judgment purported to award title to the 24 acres of land of the present dispute to the heirs of J. H. Duke and to Calfee's mother and father, both of the parents having been parties to the suit and having disclaimed all interest in the land by proper instrument executed and filed therein. Calfee's mother was a daughter of J. H. Duke. Whatever interest she may have had in the land passed by her will to Calfee's father when she died in 1949; and the father's interest, if any, then passed by his will to Calfee after the death of the father in late 1956. A chain of deeds has been introduced in the present record affecting the Moorefield homestead land, but we perceive no connection between the sovereignty of the soil and any party to the 1935 litigationeither for the 223 acres of the Moorefield homestead or the 24 acres now disputed. For present purposes, however, we will assume that the 1935 judgment is proof of common source of title between the parties to the present litigation, and we will further assume that Calfee's right to prevail in this case depends upon his proof of limitation title.
The Duke heirs have not contended that Calfee's use and occupancy of the land failed to satisfy limitation requirements. Their contention in the Court of Civil Appeals was that Calfee became a cotenant with the other Duke heirs upon his father's death and that Calfee failed to bring home to these cotenants notice of his repudiation of their title. We do not reach that contention if Calfee entered into possession of the land in July of 1946 for himself and without a cotenancy relation to anyone. An inheritance after that date would not of itself create the relationship which would require an express repudiation by him. See Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256 (1939); Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565 (1950); Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81 (1942). Furthermore, the full ten year limitation period passed prior to the death of Calfee's father.
The Court of Civil Appeals held that the adverse possession of Calfee could not have begun prior to the death of his father because of Calfee's testimony at the trial that he did not claim the land in question against his mother and father while they were living. That conclusion must be based upon the following exchange at the close of the cross-examination of Calfee:
Q Did you start adversely claiming it against your father and mother?
A I didn't start claiming it against nobody, but he
Q When did you start claiming it against anybody?
A When I bought it.
Q When your father and mother were living, were you claiming it against them?
A No, sir. I wasn't claiming it against nobody. I bought what I understood was that place, and it was fenced, and *642 that's the way people have been using it, and that's what I bought.
It was Calfee's testimony that there was no difference between his use or claim of the disputed acreage during the years before the death of his father and in the years thereafter. He commenced "claiming it as his own" at the time he made his purchase in 1946 because he believed at all times that his deed included all of the land under fence. He thought he "owned" all of the fenced enclosure after taking the 1946 deed. What, then, is the effect of his testimony set forth above that he was not claiming against his mother and father?
To satisfy the limitation statutes, "adverse possession" must be not only "an actual and visible appropriation of the land" but it also must be "commenced and continued under a claim of right inconsistent with and hostile to the claim of another." Art. 5515, Vernon's Ann.Civ.St. No matter what the use and occupancy of the land may be, the possessor must intend to appropriate it. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517 (1956). If by mental reservation the possessor intends to hold the land only until or unless the true owner appears, his claim of right does not satisfy this requirement. Word v. Drouthett, 44 Tex. 365 (1875); Thompson v. Moor, 14 S.W.2d 803 (Tex.Com.App.1929); Orlando v. Moore, 274 S.W.2d 86 (Tex.Civ.App. 1954, writ ref'd n. r. e.).
In many cases the statements of the adverse claimant appear to be, or may in fact be, inconsistent. It is usually held that a fact issue is thereby presented on the question of his intent to claim the land. In Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453 (1944), the possessor testified in his deposition that he was not trying to take the land away from those who owned it, but at the trial he said that he had always claimed it for himself. In Stewart v. Luhning, 134 Tex. 23, 131 S.W.2d 824 (1939), the possessor testified that he would have either leased or bought the land if the true owner had been found at the time when his possession began, but his other testimony was held not to show conclusively that this was his state of mind during the subsequent possession of the land. In Payne v. Priddy, 371 S.W.2d 783 (Tex.Civ.App.1963, no writ), the possessor testified that he would not have asserted claim to any land that did not rightfully belong to him, but during the limitation period he did in fact claim all of the land under his fence and he had no knowledge that his fence was not located at the boundary set by his deed.
Since the trial court has resolved all fact issues in favor of Calfee, it would not matter at this point whether or not his testimony was inconsistent. It does seem clear that what he was saying at all times was that for over 20 years he never thought of himself as claiming adversely to anyone for the simple reason that he thought that he was the rightful owner and had no competition for that ownership. He testified as follows:
Q Mr. Calfee, when you bought from Watson and Paddock, did you claim everything that was under fence?
A That's right.
Q And was this twenty-seven acres that you now understand to be in dispute, was that within your fence?
A That was in the fence.
Q And you claimed everything inside the fence?
A That's right.
Q From the date you bought it?
A That's right.
That being his claim of right, and it being coupled with his actual and visible possession and use, the adverse claim and possession satisfy the statutory requirements and cannot be defeated by Calfee's lack of knowledge of the deficiency of his record title or by the absence of a realization that there could be other claimants for the land. Butler v. Hanson, 455 S.W.2d 942 (Tex. 1970); Bruce v. Washington, 80 Tex. 368, 15 S.W. 1104 (1891); Goslin v. Beazley, 339 S.W.2d 689 (Tex.Civ.App.1960, writ ref'd n. r. e.); Yates v. Hogstrom, 444 S.W.2d 851 (Tex.Civ.App.1969, no writ); 7 Powell, The Law of Real Property § 1015; Anno.: Adverse PossessionMistake in Boundary, 97 A.L.R. 14, 36 (1935).
*643 The judgment of the Court of Civil Appeals is reversed; the judgment of the trial court is here affirmed.
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502 F.Supp.2d 301 (2006)
Duarnis PEREZ, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 1:05-CV-1294(LEK).
United States District Court, N.D. New York.
August 15, 2006.
*302 J. Jeffrey Weisenfeld, Office of J. Jeffrey Weisenfeld, New York City, for Petitioner.
Sara M. Lord, Office of United States Attorney, Albany, NY, for Respondent.
MEMORANDUM DECISION AND ORDER[1]
KAHN, District Judge.
Presently before the Court is a petition and supporting documentation for a writ of habeas corpus filed by Duarnis Perez ("Perez" or "Petitioner"), pursuant to 28 U.S.C. § 2255 (" § 2255 petition"). See Dkt. Nos. 1, 3. For the following reasons, the petition is granted.
*303 I. BACKGROUND
On July 5, 1996, Perez was deported to the Dominican Republic after he was convicted of, and on the basis of, an aggravated felony, specifically, the manufacture and delivery of heroin. Plea Tr. (Case No. 00-CR-266, Dkt. No. 19) at 15. At the time of his conviction, Perez and the Government believed that Perez was a citizen of the Dominican Republic and, therefore, an alien. Id. In 2000, Perez was arrested in Rouse's Point, New York, and pleaded guilty to one count of illegal reentry after deportation pursuant to 8 U.S.C. 1326.[2] On September 27, 2000, this Court sentenced Perez to incarceration for a term of fifty-seven (57) months followed by supervised release for a term of three (3) years. Petr.'s Mem. No.1[3] (Dkt. No. 1, Ex. B). Perez appealed his sentence arguing that his prior conviction, which significantly increased the maximum guideline sentence, is an element of the crime that should have been charged in the information. The Second Circuit, however, rejected Perez's argument and affirmed this Court's decision on March 28, 2001. See Summ. Order (Case No. 00-CR-266, Dkt. No. 23).
On April 10, 2004, after serving the entire incarcerative portion of his sentence that is, after spending fifty-seven months in prison Perez met with a representative of Immigration and Customs Enforcement ("ICE") to commence his deportation proceedings.[4] At this meeting, the ICE representative informed Perez that he was, in fact, a United States citizen and, therefore, could not be deported. Petr.'s Aff. (Dkt. No. 3) at ¶¶ 6, 17. In effect, Perez was notified that he had been wrongfully deported in 1996 and, thereafter, wrongfully incarcerated for illegal reentry. Soon after, USCIS issued Perez a Certificate of Citizenship dated July 2, 2004. Petr.'s Mem. No. 1 (Dkt. No. 1, Ex. A).
Unbeknownst to him, Perez automatically had become a naturalized United States citizen on April 13, 1988, derivatively through his mother's successful naturalization.[5] Petr.'s Mem. No. 1 (Dkt. No. 1); *304 Petr.'s Aff. (Dkt. No. 3) at ¶¶ 17, 12. Prior to his meeting with the ICE representative, Perez was not notified, in any manner, that he was a naturalized citizen; he had received no documentation concerning his citizenship status. Moreover, none of the attorneys representing him in his initial deportation proceeding or his illegal reentry proceedings suggested to him that he may be a United States citizen. Petr.'s Aff. (Dkt. No. 3) at ¶¶ 7-10. Even his mother did not know that he was a United States citizen. Petr.'s Mem. No. 2 (Dkt. No. 3) at 3 n. 1.
In the middle of 2003, Perez retained Emily Viziri, Esq., as counsel to represent him in his post-incarceration deportation proceedings. In discussing his case with Viziri, the possibility that Perez was a United States citizen was raised; but, after the possibility was raised, Viziri neither provided further advice on, nor secured any proof of, Perez's citizenship status. Petr.'s Aff. (Dkt. No. 3) at ¶¶ 14-16.
On January 13, 2005, Perez filed a petition for a writ of error coram nobis to vacate his conviction in light of the newly discovered fact that he is a United States citizen. Petr.'s Mot., (Dkt. No. 1). On May 25, 2005, this Court ordered that Perez recharacterize his application as one for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, because he is still in the custody of the United States by virtue of his pending supervised release.[6] On October 17, 2005, Perez filed a proper § 2255 petition requesting that the Court vacate his conviction and, in turn, the remainder of his sentence specifically, his term of supervised release. Petr.'s Mem. No. 2 (Dkt. No. 3). The Government has opposed this petition. Govt.'s Mem. (Dkt. No. 5).
II. DISCUSSION
A. Petitioner is not Time Barred from Seeking Relief
Before the Court can address the claims brought in the instant § 2255 petition, the Court must first determine whether Petitioner is time barred from raising these claims. Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), there is a one-year statute of limitations for filing a § 2255 petition. This statute of limitations begins to run from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized *305 by the Supreme Court and made retroactively applicable on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255.
In the instant case, Petitioner argues that the statute of limitations began to run from the date on which he discovered that he was, in fact, a United States citizen that is, the date on which the fact supporting his current § 2255 claim was discovered. Petr.'s Mem. No. 2 (Dkt. No. 3) at 2. Petitioner contends that, in exercising due diligence, the earliest date on which he was able to discover that he was a United States citizen was on April 10, 2004, when the ICE representative informed him of his citizenship status. Id. Therefore, according to Petitioner, his petition, which was initially filed on January 13, 2005, is timely since it was filed within one-year of April 10, 2004.
The Government, however, argues that Petitioner is barred from seeking relief because he could have discovered, through the exercise of due diligence, that he was a United States citizen specifically contending that Petitioner had the ability and, therefore, the responsibility to discover his citizenship status prior to the judgment of his conviction becoming final, or his meeting with the ICE agent on April 10, 2004.[7] Govt.'s Mem. (Dkt. No. 5) at 3, 5. Nonetheless, as the Second Circuit has held, "the statute does not require the maximum feasible diligence," but, rather, only reasonable diligence. Wims v. United States, 225 F.3d 186, 190 (2d Cir.2000). That is, even if it was possible for a petitioner to discover facts or evidence relevant to his defense, the petitioner need not actually discover those facts or evidence to exercise due diligence so long as the petitioner reasonably pursued discovering all relevant evidence concerning his defense.
The Court believes that, though it may have been possible for Petitioner to have discovered his citizenship status prior to the date on which his conviction became final, it was not entirely unreasonable for him not to have done so. Petitioner did not receive any notification that he had automatically become a citizen in 1988; it was not until his meeting with the ICE agent that he was given any indication that he was a United States citizen. Prior to the meeting, he did not take any oath or receive any documentation from the Government. Moreover, none of Petitioner's attorneys, in any of his criminal proceedings, advised him that he was possibly a citizen. Even Petitioner's mother told him and his lawyers that Petitioner was not a United States citizen a statement that Petitioner claims his mother now regrets. Petr.'s Mem. No. 2 (Dkt. No. 3) at 3 n. 1.
The Court, more importantly, finds that it was not unreasonable for Petitioner, once he had already been deported, to assume that he was not a United States citizen. The Second Circuit has presumed that "deportation itself is sufficient to impress upon the mind of the deportee that return is forbidden." United States v. Torres-Echavarria, 129 F.3d 692, 698 (2d Cir.1997) (holding that a deportee found in *306 the United States unless he receives the Attorney General's permission is presumed to have an intent to reenter unlawfully). That is, when a person is deported he is, in effect, given notice that he is barred from reentering the country without explicit permission from the Attorney General. Moreover, a United States citizen cannot be barred from reentering the country. United States v. Wong Kim Ark, 169 U.S. 649, 653, 18 S.Ct. 456, 42 L.Ed. 890 (1898) (holding that the petitioner, of Chinese descent, could not be barred from entering the country because he was born in the United States and is, therefore, a United States citizen). It follows, then, that a person who is lawfully barred from reentering the United States cannot be a United States citizen. Deportation is, in effect, notice, by the Government, to the deportee that he is not a United States citizen. A deportee is, therefore, constructively notified by the INS or, now, by the Department of Homeland Security that he is not a citizen.
The Court finds that it is not unreasonable to rely on the INS's constructive notice via deportation. In the instant case, Petitioner was deported in 1996 pursuant to 8 U.S.C. § 1227(a)(2), which only subjects aliens to deportation. The Court finds that the statute of limitations did not begin until Petitioner was informed of his citizenship status by the ICE agent on April 10, 2004. As a result, the instant petition, which was filed on January 13, 2005, is timely.
B. Petitioner May Collaterally Attack His Guilty Plea
A guilty plea is considered an admission of all the elements of a crime. By pleading guilty, a defendant concedes to the veracity of the facts that constitute the crime so that, ordinarily, "a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). One exception, inter alia, is when a petitioner is able to establish actual innocence in light of newly discovered evidence. Fountain v. United States 357 F.3d 250, 255 (2d Cir.2004). To show actual innocence, a petitioner must prove that he is factually innocent, not by merely showing legal insufficiency. Bousley v. United States 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). That is, the petitioner must prove, in light of new, reliable evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Because the actual innocence determination is based on an assessment of fact, the Government may rebut an actual innocence claim using "any admissible evidence of petitioner's guilt even if that evidence was not presented during petitioner's plea colloquy." Fountain 357 F.3d at 255 (quoting Bousley 523 U.S. at 623-24, 118 S.Ct. 1604). In sum, a petitioner may challenge his guilty plea if, in light of all new evidence provided by both the petitioner and the Government, the petitioner can show that a reasonable juror would have a reasonable doubt as to his guilt.
In the instant case, Petitioner's conviction for illegal reentry after deportation rests on the facts to which he admitted in his guilty plea. The elements to prove an illegal reentry pertinent to Petitioner are that: (1) the accused is an alien; (2) the accused has been previously deported; (3) the accused was found in the United States; and (4) the accused required consent of the Attorney General to reenter the United States and did not obtain the consent of the Attorney General prior to his reentry. 8 U.S.C. § 1326(1)(2). In open court, Petitioner admitted that: (1) he was a citizen of the Dominican *307 Republic; (2) he was previously deported pursuant to an aggravated felony conviction; (3) he was found at Rouse's Point, New York, where he attempted to reenter the United States from Canada:. and (4) he did not have permission from the Attorney General to reenter the United States after he was deported. Plea Tr. (Case No. 00-CR-266, Dkt. No. 19) at 14-17. Therefore, in order to challenge the factual basis on which he was convicted, Petitioner must establish actual innocence he must show that, in light of new evidence, no reasonable juror could still find him guilty beyond a reasonable doubt.
In support of his actual innocence claim, Petitioner advances his Certificate of Citizenship as newly discovered evidence to prove that he is, in fact, a United States citizen. Petr.'s Mem. No. 1 (Dkt. No. 1, Ex. A). Because both Petitioner and the prosecutor were unaware of this evidence when Petitioner pleaded guilty, the Court finds that Petitioner's Certificate of Citizenship properly serves as new evidence to support his actual innocence claim.
The Government does not dispute Petitioner's citizenship status or posit any new evidence to further support a finding of guilt under 8 U.S.C. § 1326. In light of his Certificate of Citizenship, the Court' finds that Petitioner was indeed a citizen at the time of his conviction for illegal reentry. Thus, the first requisite element of a conviction under 8 U.S.C. § 1326 that the accused be an alien & is not satisfied. As a result, the Court finds that no reasonable juror could find him guilty of illegal reentry after deportation. Because he has established actual innocence, Petitioner may advance a § 2255 petition to challenge his guilty plea.
C. Petitioner's Procedural Default is Excused
A prisoner must make all of his defense claims in his trial or on direct appeal of his conviction so that the government has ample opportunity to address them. Any claims not raised on direct appeal are, in general, procedurally defaulted and, therefore, barred from being advanced as the grounds for a § 2255 petition. Bousley 523 U.S. at 622, 118 S.Ct. 1604; Murray v. Carrier 477 U.S. 478, 485, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986). This rule also applies to situations in which the petitioner cannot make an appeal because he has, in a plea agreement, waived his right to appeal. United States v. Pipitone 67 F.3d 34, 39 (2d Cir.1995) (citing United States v. Jones No. 94-6209, 1995 WL 321263, at *1 (4th Cir. May 30, 1995)).
The Supreme Court has, however, recognized a miscarriage-of-justice exception to the general bar. Carrier 477 U.S. at 495, 106 S.Ct. 2678. The Court explains that "where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Id. at 496, 106 S.Ct. 2678. See also Spence v. Superintendent, Great Meadow Corr. Fac. 219 F.3d 162, 171 (2d Cir.2000) (holding that demonstrating actual innocence excuses procedural default in noncapital cases); supra pp. 306-07 (standard for actual innocence).
In the present case, since Petitioner appealed his sentence, but not his actual conviction, he has procedurally defaulted on the claims he advances in the instant § 2255 petition. Specifically, he failed to raise in his direct appeal the fact that he is a United States citizen and the contention that the Government failed to, inform him of his citizenship status when it prosecuted him for illegal reentry. Therefore, under the general rule, Petitioner's § 2255 petition has been procedurally defaulted. Nonetheless, the Court may review the petition on its merits because Petitioner *308 has established his actual innocence, as the Court previously noted, based on newly discovered evidence. See, supra p. 306-07.
D. Petitioner's Sentence was Imposed in Violation of the Constitution
A federal prisoner may move the court that sentenced him to vacate his conviction and sentence when imposed in violation of the Constitution or laws of the United States. See 28 U.S.C. § 2255; United States v. Bagley 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The grounds for seeking relief pursuant to 28 U.S.C. § 2255 are narrowly construed so that "the writ of habeas corpus will not be allowed to do service for an appeal." Sunal v. Large 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). That is, a habeas petition does not reexamine evidence to determine whether a prisoner is guilty or innocent. Instead, on habeas review, the court ensures that the petitioner's conviction and imprisonment was not the result of a constitutional violation. Therefore, freestanding claims of actual innocence, in light of new evidence, cannot serve as grounds for habeas relief. Herrera v. Collins 506 U.S. 390; 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). To receive habeas relief, a petitioner must show that his conviction is the result of a constitutional violation. Petitioner argues that, because the Government was aware or, at least, should have been aware that he was a United States citizen, the Government violated his constitutional right to due process by failing to disclose his citizenship status to him. Petr.'s Mot. (Dkt. No. 1) at 2.
The criminal justice system of the United States fundamentally serves to ensure that "the guilty be convicted and the innocent go free." Herring v. New York 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). The Government's interest in a criminal prosecution, therefore, "is not that it shall win a case, but that justice shall be done." Berger v. United States 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). In accordance with their duty to exact justice, United States v. Tomaiolo 286 F.2d 568, 569 (2d Cir.1961) (quoting Berger 295 U.S. at 88; 55 S.Ct. 629), United States Attorneys, at times, have declined to oppose petitions to correct clear errors. See Serwa v. United States No. 96-MJ-199 (Govt.'s Motion, Dkt. No. 4) (the Government actually moved the Court to dismiss the complaint and vacate the prisoner's conviction in the interest of justice); United States v. Cox No. 94-3500-EEO, 1995 WL 351406, at *2 (D.Kan. May 5, 1995). Yet, in the instant case, the Government opposes the § 2255 petition while simultaneously conceding that Petitioner is a United States citizen and, therefore, could not be properly prosecuted pursuant to 8 U.S.C. § 1326. See, infra pp. 310-11. In effect, the Government is arguing that an innocent man who was wrongly convicted should not be released from the custody of the United States. Moreover, the Government, in opposing a petition that would correct the wrongful conviction of an innocent man, has wasted limited judicial and prosecutorial resources. Because the prosecutor is the representative of the Government in a criminal prosecution, his role is more than a mere adversary; he is charged with ensuring that an accused receive due process & that is, a fair trial.
The Supreme Court has, therefore, established that it is a violation of the accused's constitutional right to due process for the Government, in good faith or bad in bad faith, to withhold any material, exculpatory evidence whether or not the defendant explicitly requests this evidence. See Brady v. Maryland 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the prosecution's suppression of requested evidence favorable to the defendant violates due process, notwithstanding the prosecution's good faith); United *309 States vs. Agurs 427 U.S. 97, 106, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (holding that prosecution's failure to disclose material, exculpatory evidence, even if it is not requested by the defendant, constitutes a due process violation); Bagley 473 U.S. at 684, 105 S.Ct. 3375 (holding that prosecution's failure to disclose evidence, which, if admitted, would have had a reasonable probability of resulting in a different verdict, is grounds for granting a § 2255 petition).
The prosecutor, moreover, is obligated to disclose any material, exculpatory information that is in its constructive possession that is, any information that is in the possession of an "arm of the prosecution." United States v. Morell 524 F.2d 550, 555 (2d Cir.1975). An "arm of the prosecution" is any government agent or agency that investigates and provides information specifically aimed at prosecuting a particular accused.[8] Thus, the Court may impute, to the prosecutor, the knowledge of any exculpatory evidence that is known to any government agent or agency involved in the prosecution of a criminal case.
In Kyles v. Whitley 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the prosecution of the defendant, who was accused of first degree murder, primarily rested on the testimony of a police informant. The police officers who investigated the case were aware of certain facts that affected the credibility of the informant. The investigators, however, did not reveal that impeachment information to the prosecutor until the defendant was convicted. The prosecution, as a result, failed to disclose this potentially exculpatory information to the defense. The Court held that the prosecutor, though unaware of the evidence during the trial, was still responsible for disclosing information concerning the credibility of certain witnesses. The Court reasoned that the prosecutor had the ability to create procedures and regulations to ensure that government agents provided the prosecutor with all information that is possibly exculpatory. Kyles 514 U.S. at 438, 115 S.Ct. 1555 (quoting Giglio v. United States 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)).
As the Government's representative, the prosecutor has the responsibility to be aware of all information in the possession of the Government and ensure that this information, if favorable to the defendant, is disclosed to the defense. Otherwise, government agents and agencies would be encouraged to withhold exculpatory evidence from the prosecutor in order to avoid disclosing such information to the defense. Such a system would be manifestly unjust since exculpatory information possessed solely by a government agent or agency would never come to light. Innocent defendants could face conviction since such defendants would not have access to the information that would exonerate them.
Not all acts of withholding exculpatory evidence, however, are grounds for *310 granting a § 2255 petition. First, a prosecutor is not obligated to disclose, to the defendant, information that "the defendant or his attorney either knew, or should have known." United States v. Gonzalez 110 F.3d 936, 944 (2d Cir.1997). Instead, the prosecutor must disclose exculpatory information, to the defense, that is in the prosecutor's actual or constructive possession only if it is reasonable for the defendant not to know that exculpatory information.
Second, only when undisclosed, exculpatory evidence is material is an accused's right to due process violated. Brady 373 U.S. at 87; 83 S.Ct. 1194. Generally, in a situation where a prosecutor fails to disclose "exculpatory information, which was not known to the prosecutor, but was in the constructive possession of the prosecutor, the withheld information is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the, proceeding would have been different." Orena v. United States 956 F.Supp. 1071, 1092 (E.D.N.Y.1997) (quoting Bagley 473 U.S. at 682, 105 S.Ct. 3375). In the context of a guilty plea under this same circumstance, the test for materiality is "whether there is a reasonable probability that but for the failure to produce such information the defendant would not have entered the plea but instead would have insisted on going to trial." Tate v. Wood 963 F.2d 20, 24 (2d Cir.1992). That is, withheld evidence is deemed to be material only if, had the evidence been properly disclosed, competent counsel would have, with reasonable probability, advised the accused to plead not guilty. Miller v. Angliker 848 F.2d 1312, 1322 (2d Cir. 1988). No competent defense attorney would advise his client to plead guilty to a charge on which the Government would be unable to convict the accused. Therefore, if the prosecution's failure to disclose evidence could have, with reasonable probability, resulted in an inability to convict the accused, that is grounds for vacating a conviction pursuant to 28 U.S.C. § 2255.
In the instant case, Petitioner's constitutional right to due process was violated when the Government failed to disclose to him, upon prosecuting him for illegal reentry, that he was, in fact, a United States citizen. The Government concedes that Petitioner "does appear to have acquired U.S. citizenship" prior to his conviction for illegal reentry. Govt's Mem. (Dkt. No. 5) at 1. Further, as the Court previously noted, it was not unreasonable for Petitioner not to have known that he was United States citizen. See, supra pp. 305-06. As a United States citizen, Petitioner is not the proper subject to be convicted pursuant to 8 U.S.C. § 1326 rendering the Government unable to prosecute Petitioner for illegal reentry. Thus, the evidence supporting the fact that Petitioner is a United States citizen, if improperly withheld, is material.
The Government had constructive knowledge of the fact that Petitioner was a United States citizen when he was prosecuted pursuant to 8 U.S.C. § 1326. In 2000, when the Government prosecuted Petitioner for illegal reentry, the INS was the government agency that handled legal and illegal immigration and naturalization. The INS's responsibilities included, inter alia maintaining records of naturalization and investigating cases of illegal immigration to prosecute illegal immigrants.[9] Petitioner *311 argues that the INS had a record of his citizenship status when the Government prosecuted him for illegal reentry. Petr.'s Mem. No. 1 (Dkt. No. 1) at 3. The Government provides no evidence to the contrary. Moreover, the ICE agent, in 2004, indicated to Petitioner that the USCIS had a record of his naturalization. Because he was naturalized along with his mother in 1988, the record must have been created at that time. Therefore, the Court finds that the INS had, in its possession, a record of Petitioner's citizenship status when the Government prosecuted Petitioner for illegal reentry.
The INS's knowledge of Petitioner's citizenship status may be imputed to the prosecutor because the INS acted as a part of the prosecution team. The INS provided the Government with the information that Petitioner had been previously deported in 1996 and was, therefore, illegally in the United States in 2000. Plea Tr. (Case No. 00-CR-266, Dkt. No. 19) at 15-16. The INS also assisted the Government in prosecuting Petitioner by investigating Petitioner's immigration status and providing the information to the prosecutor for the sole purpose of prosecuting Petitioner for illegal reentry thereby acting as an arm of the prosecution in the case against Petitioner.
In sum, the Government was obligated to disclose to Petitioner that he was a United States citizen because (1) that information was in the constructive possession of the prosecutor and (2) that information was material. Because the Government did not disclose the material, exculpatory information to him, Petitioner suffered a constitutional due process violation. Thus, the Court finds that Petitioner has been imprisoned as a result of a constitutional violation.
Alternatively, Petitioner makes the claim that his conviction and sentence should be vacated because, as a United States citizen, Petitioner cannot be convicted of illegal reentry. Petr.'s Mem. No. 2 (Dkt. No. 3) at 1. United States citizenship entails the privilege to reenter and remain in the country and the immunity from conviction for engaging in such activities. See Acosta v. Gaffney 413 F.Supp. 827, 832 (D.N.J.1976) ("No act of any branch of government may deny to any citizen the full scope of privileges and immunities inherent in United States citizenship. Central to all of those rights, of course, is the right to remain."); Lopez v. Franklin 427 F.Supp. 345, 349 (E.D.Mich.1977) ("He faces no quotas or entry restrictions because he is not an alien but a native-born citizen of the United States."). To deny a United States citizen the privilege to reenter and remain in the United States, and the immunity from being convicted for doing so, would be "repugnant to the Constitution." Acosta 413 F.Supp. at 832. It is a constitutional violation to imprison a United States citizen for reentering the United States.
In the present case, because Petitioner has established that he is a United States citizen, it is a constitutional violation to convict him for reentering the United States. As a result, the Court finds that Petitioner's conviction and, in turn, his sentence should be vacated pursuant to 28 U.S.C. § 2255.
III. CONCLUSION
Accordingly, it is hereby
ORDERED that Petitioner's Motion and supporting documentation, pursuant to 28 U.S.C. § 2255, to vacate and set aside *312 his conviction and sentence (Dkt.Nos.1, 3) is GRANTED; and it is further
ORDERED that the. Clerk of the Court serve a copy of this Order on all parties by regular mail.
IT IS SO ORDERED.
NOTES
[1] For printed publication by tile Federal Reporters.
[2] Perez states that he has waived all collateral remedies in his plea agreement. Petr.'s Mem. No. 1 (Dkt. No. 1) at 3. He is incorrect. In his plea agreement, Perez only waived his rights, pursuant to 18 U.S.C. § 3742, to appeal any sentence of imprisonment of ninety-six (96) months or less. Plea Agr. (Case No. 00-CR-266, Dkt. No. 10) at 11.
[3] Perez initially filed a motion for a writ of error coram nobis. Thereafter, Perez, pursuant to instructions from the Court, recharacterized his motion as a habeas petition, in accordance with 28 U.S.C. § 2255. See, infra, p. 304. Therefore, the Court refers to the memorandum of law in support of the writ of coram nobis as "Petr.'s Mem. No. 1" and the memorandum of law in support of the writ of habeas corpus as "Petr.'s Mem. No. 2."
[4] In his motions, memoranda and affidavit, Petitioner states that a representative from the Immigration and Naturalization Services ("INS") informed him, on April 10, 2004, that he was a United States citizen. However, on March 1, 2003, the INS transitioned into the Department of Homeland Security and was divided into three separate agencies: the United States Citizenship and Immigration Services ("USCIS"), the United States Immigration and Customs Enforcement, and the United States Customs and Border Protection. Now, the USCIS is responsible for only the administration of immigration services, including record keeping services, and the ICE is responsible for investigating and enforcing immigration laws. Representatives from ICE conduct deportation proceedings for convicted aliens after their incarceration is complete. Therefore, an ICE agent, and not an INS agent, informed Perez that he was a United States citizen on April 10, 2004.
[5] In 1988, when Perez's mother received citizenship, 8 U.S.C. § 1432 provided that a child born outside the United States automatically became a citizen when the following three conditions were present: (1) the parent with sole custody of the child became a United States citizen; (2) the child was under sixteen years of age; (3) the child was lawfully residing in the United States. At the time his mother received citizenship, Perez was fifteen years old and was legally residing in the United States, and his mother had sole custody of him. He, therefore, automatically became a United States citizen on April 13, 1988.
[6] A writ of error, coram nobis can only be granted to federal prisoners that have completed their entire sentence and are no longer in the custody of the United States. Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998). Petitioners under federal supervised release are considered to be in the custody of the United States and are, therefore, precluded from receiving relief through a writ of error coram nobis. United States v. Pregent, 190 F.3d 279, 283 (4th Cir.1999) (citing Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989)). A writ of habeas corpus, however, is available to prisoners that are still in the custody of the United States. 28 U.S.C. § 2241(c)(1). Therefore, in the instant case, Perez, who is still under supervised release, can only move the Court to vacate his conviction by moving for a writ of habeas corpus, not by a writ of error coram nobis.
[7] The Government incorrectly treated 28 U.S.C. § 2255(4) as providing the basis for tolling the statute of limitations, that is, for extending the limitations period. Properly interpreted, § 2255(4) actually defines the time at which the statute of limitations begins to run; it resets the start of the limitations period to the date on which a new material fact is discovered. Wims v. United States, 225 F.3d 186, 190 (2d Cir.2000). Nonetheless, the Government's claim that Petitioner had ample opportunity to discover his citizenship status before his conviction became final is, still, relevant in determining when the statute of limitations actually begins to run.
[8] The prosecutor is not responsible to disclose exculpatory information that the prosecutor does not know exists, which is only in the,. possession of a government agent or agency that is not directly involved in the prosecution of the criminal case. Such a requirement would "condemn the prosecution of criminal cases to a state of paralysis." United States v. Avellino 136 F.3d 249, 255 (2d Cir.1998) (quoting United States v. Gambino 835 F.Supp. 74, 95 (E.D.N.Y.1993)). See also Pina v. Henderson 752 F.2d 47 (2d Cir.1985) (holding that information possessed by a parole officer could not be imputed to the prosecutor because the Parole Office did not serve, in this case, as a investigatorial agency and the parole officer was not a prosecutorial investigator in the prosecution of the accused). Instead, only agencies that actively contributed to the criminal investigation of a particular accused are considered to be an arm of the prosecution of that defendant.
[9] Again, since the INS transitioned into the Department of Homeland Security, the various functions of the INS have been divided into three separate government agencies under the supervision of the Department of Homeland Security. Under the new bureaucratic structure, the USCIS may, or may not, be considered an arm of the prosecution since the prosecutorial functions are in the province of the ICE while the records are kept by the USCIS. In the present case, the Court is only concerned with whether, under the old structure, the INS is considered part of the prosecution team.
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544 S.W.2d 9 (1976)
Jerry KILBANE d/b/a Kilbane Dental Lab, Appellant,
v.
The DIRECTOR OF the DEPARTMENT OF REVENUE of the State of Missouri, Respondent.
No. 59341.
Supreme Court of Missouri, En Banc.
December 13, 1976.
*10 Jack N. Bohm, Stoup & Bohm, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Douglas Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
FINCH, Judge.
This is an appeal from a judgment which affirmed an assessment of sales tax by the Missouri Department of Revenue on gold and porcelain crown and bridgework fabricated on prescription by appellant for dentists. The sole issue for determination on appeal is whether such purchases by dentists are sales at retail within the definition thereof contained in § 144.010.1(9).[1] Since construction of the revenue laws of the state is involved, we have jurisdiction. Art. V, § 3, Mo.Const.
This case was heard in Division Two wherein an opinion was adopted which reversed the judgment and directed abatement of the tax assessed. Thereafter, the case was transferred to the court en banc and reheard. We affirm.
Appellant operates a dental laboratory in which he makes crown and bridgework pursuant to orders received from dentists. Appellant is furnished a prescription for each order, usually accompanied by an impression of the mouth of the patient. When completed, the crowns and bridgework are furnished to the dentist who then installs them in the mouth of his patient.
Appellant purchases from dental supply houses the various materials used by him in making crowns and bridgework. He pays sales tax on those materials but has not reported and paid sales tax on crowns and bridgework made for and sold to dentists.
On February 13, 1975, the Director of Revenue made an assessment of sales tax on bridgework and crowns sold by appellant between January 1, 1971, and March 30, 1974. Appellant contested the assessment and an evidentiary hearing was held by a hearing officer for the Department of Revenue. He made findings of fact and conclusions of law wherein he upheld the assessment, after allowing credit thereon for sales taxes shown to have been paid by appellant on materials used in making the crowns and bridgework. The amount of the assessment approved, including penalty and interest to date of the hearing officer's order, was $9,446.04. Thereafter, on petition for review to the circuit court, the assessment was affirmed and judgment was entered accordingly. This appeal followed.
In Berry-Kofron Dental Laboratory Co. v. Smith, 345 Mo. 922, 137 S.W.2d 452 (1940), this court determined that under the then existing sales tax law a dental laboratory was not liable for sales taxes on sales to dentists of articles similar to those involved here. At that time, § 1(g) of the Sales Tax Act, Laws 1937, p. 552, defined retail sales thus: "`Sale at retail' means any transfer made by any person engaged in business as defined herein of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration." The court concluded that sales by dental laboratories to dentists of dentures, inlays, bridgework and other such items were not sales at retail within that definition and were not subject to sales tax. In so holding, the court concluded that when the dentist placed such devices in the mouths of his patients, he did not use or consume them.
Thereafter, in 1947, the Missouri General Assembly amended the Sales Tax Act by adding to the definition of "Sale at *11 Retail" the following language: "; provided, however, that for the purposes of this act and the tax imposed thereby, purchases of tangible personal property made by duly licensed physicians, dentists and veterinarians and used in the practice of their professions shall be deemed to be purchases for use or consumption and not for resale."[2] The question squarely presented is whether, as a result of this amended definition of "Sale at Retail," sales of items such as crowns and bridgework, made for and sold to dentists for use in the mouths of their patients, are subject to sales tax.
When Berry-Kofron was decided, the sales tax law made taxable the transfer of tangible personal property for use or consumption by the purchaser. The act did not define the words "use" or "consumption" and there was no language specifically indicating whether the legislature intended to include therein items such as crowns, bridgework or dentures purchased by dentists on prescription for installation in the mouths of their patients. Accordingly, the court reviewed various dictionary definitions and concluded that the items in question were not used or consumed by the dentist. On that basis the court held that the sales thereof were not taxable to the dental laboratory, the seller.
With that background, the General Assembly enacted the 1947 amendment. By that amendment, the legislature added language to the existing definition which said that henceforth purchases of tangible personal property by dentists which were then used in the practice of their profession "shall be deemed to be purchases for use and consumption and not for resale". The same was to be true of similar purchases by physicians and veterinarians. What did the legislature intend by that amendment? What change in the applicable law was made?
Appellant argues that the new language applies only to things purchased from dental supply houses, such as dentist's chairs, surgical instruments, bandages, tongue depressors, medicines, etc., but does not apply to items made on order by dental laboratories and sold to the dentist placing the order. We find no language in the act to support such an interpretation. Neither dental supply houses nor dental laboratories are mentioned in the act. Furthermore, adoption of the interpretation proposed by appellant would mean that the 1947 amendment made no change in the law, because the items listed by appellant as taxable under the amended law were taxable before the amendment. In other words, the 1947 amendment would have accomplished nothing and would have been a useless act. Legislative changes should not be so construed unless no other conclusion is possible. The applicable rule of construction, stated in Gross v. Merchants-Produce Bank, 390 S.W.2d 591, 597 (Mo.App.1965), is as follows:
"In construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts, and that in amending a statute or in enacting a new one on the same subject, it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature would be accomplishing nothing, and legislatures are not presumed to have intended a useless act. Wright v. J. A. Tobin Construction Co., Mo.App., 365 S.W.2d 742; State ex rel. M. J. Gorzik Corp. v. Mosman, Mo.Sup., 315 S.W.2d 209."
In accordance with Gross, we start with the premise that by adding to the definition of "Sale at Retail", the legislature intended to and did make a change in what the law covered. It included therein items which under the existing law were excluded. While we have no legislative history to demonstrate that this change was prompted by Berry-Kofron, it seems most likely that it was. Under the law as it was prior to the 1947 amendment, materials purchased by a dentist and then used in filling teeth would have been taxable as items used or consumed in the doctor's practice. This would *12 include materials such as gold. Thus, when gold was placed inside the tooth, it was considered to be used or consumed but under Berry-Kofron, when gold crowns were placed on the tooth, they were not used or consumed. The first was a taxable purchase but the second was not. Understandably, the legislature sought to eliminate this apparent inconsistency. They said that if tangible personal property is used by the physician, dentist or veterinarian in the practice of his profession, it shall be deemed to have been purchased for use or consumption and, hence, taxable.
Clearly, the dentist uses crowns and bridgework in the practice of his profession, just as does a surgeon use in his practice a pin which he inserts in a fractured bone or an artificial joint which he uses to replace a damaged or improperly functioning joint. The fact that the item so used retains its form when placed in the patient does not mean that the doctor has not used the item in the practice of his profession.
In arguing that the purchases of crowns and bridgework are not taxable, appellant's brief stresses the fact that materials used represented only a small portion of the cost of crowns and bridgework.[3] We find nothing in the Sales Tax Act which indicates that whether sales tax is due depends on the respective percentages of labor and materials in the product sold. The meaning of the 1947 amendment cannot be resolved on that basis.
Finally, appellant relies on Rule No. 68 promulgated by the Director of Revenue. That rule states as follows:
"Purchases referred to in these instances would encompass dentist's chairs, surgical instruments, bandages, tongue depressors, etc., including medicines consumed in the rendering of their services."
It is argued by appellant that the foregoing rule, representing the Director's interpretation of § 144.010.1(9), as amended, does not include crowns or bridgework which shows that the Director did not interpret the 1947 amendment as including them. We do not agree. The rule lists several items as examples and then adds "etc.", thereby indicating that other things are included. It does not purport to list each and every kind of purchase which will be taxable. We find nothing in the rule which would justify the interpretation of the amended act urged by appellant or the conclusion that the Director so construed the amendment.
We are not called upon in this case to review the propriety of the decision in Berry-Kofron because we construe herein a statute with different provisions than those contained in the statute construed in Berry-Kofron. We do hold that Berry-Kofron is not authority for exempting appellant's purchases of crowns and bridgework from sales tax under the existing act and is not to be followed in construing coverage by the present act.
Judgment affirmed.
SEILER, C. J., and HOLMAN and BARDGETT, JJ., concur.
HENLEY, J., dissents in separate dissenting opinion filed.
MORGAN and DONNELLY, JJ., dissent and concur in separate dissenting opinion of HENLEY, J.
HENLEY, Judge (dissenting).
I respectfully dissent and as my dissenting opinion adopt the reasoning summarized in an opinion written in Division II by Eager, Special Commissioner, as follows:
The original statute taxed sales of tangible personal property for use or consumption by the purchaser. In the Berry-Kofron case, referred to in the majority opinion, the court held that a dentist purchasing a denture from a laboratory does not use or consume the denture in his practice when he places it in his patient's mouth in the course of his professional services; that the patient is the one who uses it by applying it to the purposes for which it was intended. The same is true of crowns and bridges. The 1947 amendment provides that the purchase *13 of tangible personal property by dentists and physicians which is "used in the practice of their professions" is deemed to be a purchase for use and consumption. Thus, the requirement of "use" in the practice is preserved in the amendment. And the key element here is just that: is the crown or bridge "used" by the dentist in his practice? Berry-Kofron says it is not. The legislature may perhaps have intended to negate the effect of Berry-Kofron, as respondent says, but, if so, it did not choose appropriate language. We must be guided by the language which it did use. And, in fact, we must assume, perhaps more theoretically than realistically, that the legislature was cognizant of the meaning of the language as construed in the Berry-Kofron case. In any event, "used in the practice" means what this court has previously held that it means, absent some contrary provision in the statute, or absent our overruling Berry-Kofron. I would not overrule that case, and note that the majority opinion does not.
Accordingly, I would reverse the judgment and remand the case with directions that the circuit court enter judgment reversing the decision of the Director of Revenue with directions to him to abate his assessment of sales tax against appellant.
NOTES
[1] In RSMo 1969, the section number is 144.010.1(8). However, as a result of an amendment to § 144.010 in 1975, it is now listed in V.A.M.S. as 144.010.1(9).
[2] Laws 1947, Vol. I, p. 535.
[3] Appellant testified that between 80% and 95% of the sale price for crowns and bridgework represents labor and only 5% to 20% represents materials used.
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280 N.J. Super. 217 (1994)
655 A.2d 73
JOSEPH B. DECKER, PLAINTIFF-APPELLANT,
v.
BALLY'S GRAND HOTEL CASINO, CAESAR'S ATLANTIC CITY HOTEL CASINO, MERV GRIFFIN'S RESORTS CASINO HOTEL, SANDS HOTEL & CASINO, TROPWORLD CASINO & ENTERTAINMENT RESORT, TRUMP PLAZA HOTEL & CASINO, AND TRUMP TAJ MAHAL CASINO RESORT, DEFENDANTS-RESPONDENTS, AND SHOWBOAT HOTEL & CASINO, DEFENDANT.
Superior Court of New Jersey, Appellate Division.
Argued January 5, 1994.
Decided February 15, 1994.
*218 Before Judges BROCHIN and KLEINER.
Scott E. Becker argued the cause for plaintiff-appellant.
Frederick H. Kraus argued the cause for respondent Greate Bay Hotel and Casino, Inc. t/a Sands Hotel & Casino.
Patrick Madamba argued the cause for respondents GNOC Corp., Resorts International Hotel, Inc., and Adamar of New Jersey, Inc. (Horn, Goldberg, Gorny, Daniels, Paarz, Plackter & Weiss, attorneys; Mr. Madamba, of counsel; Eileen Lindinger, on the brief).
Christine Cote argued the cause for respondents Trump Taj Mahal Casino Resort, Trump Plaza Hotel Casino, and Caesar's Atlantic City Hotel Casino (Cooper, Perskie, April, Niedelman, Wagenheim & Levenson, attorneys; Lloyd D. Levenson, of counsel and on the brief).
The opinion of the court was delivered by KLEINER, J.A.D.
Appellant Joseph B. Decker appeals from an order dismissing his complaint for failure to state a claim upon which relief may be granted. R. 4:6-2(e). We affirm.
On January 8, 1992, the Casino Control Commission ("the Commission") adopted amendments to N.J.A.C. 19:45-1.37 and N.J.A.C. 19:45-1.39. Prior to the adoption of these amendments, casino licensees were precluded from removing or reducing a *219 jackpot in a progressive slot machine[1] until a jackpot was won by a patron. The amendments, which became effective February 3, 1992, changed this regulatory scheme to allow casinos to establish time limits of not less than thirty days for the offering of progressive jackpots. Thus, the amended regulations permit casino licensees to remove progressive slot machines from the casino floor or to reduce the progressive jackpot after thirty days notice to the public and with prior Commission approval.
On October 23, 1992, plaintiff filed a complaint which named eight Atlantic City casino licensees as defendants. The complaint alleged breach of express and implied contract in that defendants had closed and removed progressive slot machines from their casino floors and sought an undefined amount of damages. In his complaint, plaintiff alleged that he had gambled in every Atlantic City casino since gambling was legalized in 1978. Due to the amount of his gambling losses since 1978, plaintiff decided that the only way to recoup his losses was to play progressive slot machines. He maintains that he has lost substantial amounts of money playing the progressive slot machines. Plaintiff further alleged that on or after February 1992, defendants closed and removed certain progressive slot machines with jackpot prizes totaling over $20 million. Plaintiff maintained that as a result of defendants removing the progressive slot machines, they breached an express and implied contract with the public that the progressive jackpot amount would be awarded to the winning player.
Thereafter defendant Sands Hotel & Casino ("the Sands") filed a motion to dismiss plaintiff's contract action for failure to state a claim upon which relief can be granted. R. 4:6-2(e). This motion was joined by all other defendants except for the Showboat Hotel & Casino ("Showboat"). The Sands argued that since plaintiff did *220 not allege that he had played any particular progressive slot machine at the Sands and had won a jackpot that had been reduced, plaintiff had no colorable claim to damages. Additionally, the Sands argued that plaintiff's allegations as to damages were speculative and plaintiff cannot establish his alleged loss.
In response, plaintiff alleged that he possessed plastic account cards issued by each of the defendant casinos which are used to record information such as a customer's gambling time, amount of winnings or losses and number of visits, but he has not been able to obtain this specific information regarding his gambling record.[2] Additionally, plaintiff argued that defendant's removal of the machines eliminated the possibility that he would win a jackpot.
On December 4, 1992, the court granted the Sands' motion and ordered plaintiff's complaint dismissed as to all defendants.[3] In its memorandum of decision, the trial court found that the casino licensees had complied with the regulation's notice requirement by posting the applicable notices on all of their progressive slot machines and had received approval of all changes from the Commission in accordance with the procedures set out in the regulations. The trial court also concluded that plaintiff had no standing to sue since his complaint did not state that he had played and won the jackpot on a progressive slot machine on *221 which the amount of the progressive meter had been reduced.[4]
On appeal, plaintiff contends that the trial court erred in dismissing his complaint for failure to state a claim upon which relief can be granted. According to plaintiff, the complaint states a cognizable claim for breach of contract or, "at the very least, quasi-contract." We conclude that plaintiff's complaint was properly dismissed.
As we stated in Rieder v. State Dep't of Transp., 221 N.J. Super. 547, 552, 535 A.2d 512 (App.Div. 1987):
On a motion made pursuant to R. 4:6-2(e) "the inquiry is confined to a consideration of the legal sufficiency of the alleged facts apparent on the face of the challenged claim." P. & J. Auto Body v. Miller, 72 N.J. Super. 207, 211 [178 A.2d 237] (App.Div. 1962). The court may not consider anything other than whether the complaint states a cognizable cause of action. Ibid. For this purpose, "all facts alleged in the complaint and legitimate inferences drawn therefrom are deemed admitted." Smith v. City of Newark, 136 N.J. Super. 107, 112 [344 A.2d 782] (App.Div. 1975). See also Heavner v. Uniroyal, Inc., 63 N.J. 130, 133 [305 A.2d 412] (1973); Polk v. Schwartz, 166 N.J. Super. 292, 299 [399 A.2d 1001] (App.Div. 1979). A complaint should not be dismissed under this rule where a cause of action is suggested by the facts and a theory of actionability may be articulated by way of amendment. Muniz v. United Hsps. Med. Ctr. Pres. Hsp., 153 N.J. Super. 79, 82-83 [379 A.2d 57] (App.Div. 1977). However, a dismissal is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted.
In this instance, the factual allegations in the complaint are "palpably insufficient" to support a cause of action. Ibid. Plaintiff placed money in the progressive slot machines and received in return a chance to win a progressive jackpot. The defendants here did not take away the opportunity to win a progressive jackpot before plaintiff pulled the handle on the progressive slot machine. Since he did not win any jackpot, plaintiff has no personal stake in the outcome of the proceedings. Cf. Patrolmen's Benev. Ass'n v. East Brunswick Tp., 180 N.J. Super. 68, 72, 433 A.2d 813 (App.Div. 1981).
*222 Plaintiff has no basis to assert a claim for breach of contract, express or implied, resulting from the removal of a progressive slot machine or the reduction in a prospective jackpot after the plaintiff discontinues his play on a particular machine. The plaintiff's only contract with any defendant is the obligation of the defendants to pay the posted machine jackpot to the plaintiff immediately after the plaintiff has inserted the requisite coinage if the deposit of coinage registers a jackpot on the particular machine then in use. Plaintiff therefore lacks standing and fails to assert a cognizable claim.
Plaintiff also submits on appeal that defendants violated N.J.A.C. 19:45-1.37(a)(9)(4)(iii) by failing to post the appropriate notices until after the machines had been in play for a substantial period of time.[5] We note that plaintiff failed to allege such a violation of the regulation in his complaint. Nonetheless, exclusive jurisdiction over any such violations clearly rests with the Commission and not with the courts. N.J.S.A. 5:12-63; N.J.S.A. 5:12-133(b).
The judgment dismissing plaintiff's complaint is affirmed.
NOTES
[1] A "progressive slot machine" is a slot machine with a progressive jackpot meter which increases incrementally as coins are placed in the machine and the machine is played. N.J.A.C. 19:45-1.39(a) to (b).
[2] Michael Trageser, the Sands' Manager of Slot Merchandising, certified that the Sands does use such cards to maintain player rating records which are prepared and maintained for particular patrons at the Sands in the ordinary course of its business, but that the Sands has no record of plaintiff as a customer. Cheryl Wilson, Assistant Vice President/Casino Marketing of defendant Caesar's, stated that Caesar's records revealed that the plaintiff's first rated play was on January 20, 1986 and his last rated play was on October 22, 1989. Caesar's records further reflected that plaintiff played slot machines on two occasions in December 1987 and that he has otherwise played craps.
[3] Although defendant Showboat did not join in the Sands' motion, the court order dismissed the entire complaint and plaintiff at oral argument acknowledged that he does not challenge the inclusion of the claim against Showboat in the dismissal. The appeal is therefore not interlocutory.
[4] Also on December 4, 1992, a declaratory action plaintiff had instituted against the Commission, which sought to declare the amendments to N.J.A.C. 19:45-1.37 and N.J.A.C. 19:45-1.39 null and void, was dismissed. Plaintiff did not appeal from that decision.
[5] N.J.A.C. 19:45-1.37(a) requires either a display on the front of each slot machine or in a location near the slot machine which provides notice of whether the slot machine offers a progressive jackpot, the dates the progressive jackpot will be offered and the payout limit, and whether a time limit or payout limit has been established. If no time limit or payout limit is established, the display must indicate that the casino licensee reserved the right to change or discontinue the progressive slot machine upon thirty days notice.
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655 A.2d 1258 (1995)
Virginia RUTTER
v.
ALLSTATE AUTOMOBILE INSURANCE CO. and
Allstate Insurance Co.
Supreme Judicial Court of Maine.
Argued January 3, 1995.
Decided March 21, 1995.
Dwight A. Fifield (orally), Childs, Emerson, Rundlett, Fifield & Childs, Portland, for employee.
Alison A. Dunham (orally), Douglas, Whiting, Denham & Rogers, Portland, for employer.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
WATHEN, Chief Justice.
Virginia Rutter appeals from a decision of the Workers' Compensation Board denying her petition for benefits finding that her claim is time-barred by the two-year statute of limitations. See 39 M.R.S.A. § 95 (1989). Because we conclude that the payment of medical expenses triggered an exception to the two-year statute of limitations, we vacate the decision of the Board and remand for further proceedings.
Virginia Rutter injured her knee in 1981 while employed by Allstate Automobile Insurance Company (Allstate). The parties have stipulated that Allstate paid medical expenses within every two-year period following *1259 the injury until a final payment on May 9, 1989. Rutter filed a petition for award of benefits on December 15, 1992. The Board initially granted the petition, but in response to Allstate's motion for findings of fact, it reversed its position and ruled that Rutter's claim is barred by the statute of limitations. We granted Rutter's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp.1994).
At the time of Rutter's petition in 1992, section 95 provided, in pertinent part that
[a]ny employee's claim for compensation under this Act is barred unless an agreement or a petition as provided in Section 94 is filed within 2 years after the date of the injury, or, if the employee is paid by the employer or the insurer, without the filing of any petition or agreement, within 2 years of any payment by such employer or insurer for benefits otherwise required by this Act. The 2-year period in which an employee may file a claim does not begin to run until the employee's employer, if the employer has actual knowledge of the injury, files a first report of injury as required by section 106 of the Act. . . . No petition of any kind may be filed more than 6 years following the date of the latest payment made under this Act. For the purposes of this section, payments of benefits made by an employer or insurer pursuant to section 51-B or 52 are considered payments under a decision pursuant to a petition, unless a timely notice of controversy has been filed.
39 M.R.S.A. § 95 (Supp.1992) (emphasis added).[1]
Rutter contends that, pursuant to the last sentence of section 95, the payments of medical expenses must be considered "payments under a decision pursuant to a petition," thereby triggering the exception to the two-year statute of limitations. Allstate argues that the last sentence of section 95, which was originally enacted in 1983 and amended in 1989, does not apply retroactively to Rutter's 1981 date of injury. As we noted in Danforth v. L.L. Bean, Inc., 624 A.2d 1231, 1232 (Me.1993), however, in the absence of a legislative statement to the contrary, amendments to section 95 are procedural and may be applied retroactively to extend the statute of limitations as long as the employee's claim was not extinguished on the effective date of the amendment. Id.; see also Dobson v. Quinn Freight Lines, 415 A.2d 814, 816 (Me. 1980). At the time of Rutter's injury, the first sentence of section 95 provided that any payment of benefits by an employer extends the statute of limitations for two years from the date of payment. See P.L.1975, ch. 372 (effective October 1, 1975). In this case, the final benefit was paid in the form of a medical payment in May of 1989. That payment extended Rutter's claim until May of 1991. Accordingly, Rutter's claim was actionable on the effective date of the 1989 amendment, and that amendment extended the limitations period on Rutter's claim to ten years. See P.L.1989, ch. 256, § 4 (effective September 30, 1989).[2]
Allstate argues that because the last sentence of section 95 was originally enacted in 1983 as part of the "early pay system," it was intended to apply only to injuries arising after 1983. The early pay system was designed to reduce attorney involvement and encourage informal acceptance of claims, and the last sentence of section 95 enabled employees to extend the life of their claims without filing a formal petition. P.L.1983, ch. 587, § 1 (effective December 7, 1983); see also L.D. 1803, Statement of Fact (111th Legis.1983); Wentworth v. Manpower Temporary Servs., 589 A.2d 934, 938 (Me.1991); Stickles v. United Parcel Serv., 554 A.2d 1176, 1178 (Me.1989). As originally enacted in 1983, the last sentence of section 95 provided that "[f]or the purposes of this section, *1260 payments of benefits made by an employer or insurer pursuant to section 51-B shall be considered payments under a decision unless a timely notice of controversy has been filed." P.L.1983, ch. 587, § 1 (effective December 7, 1983). Therefore, Allstate contends that, because section 51-B expressly applies only to injuries arising after December 31, 1983, 39 M.R.S.A. § 51-B(1) (1989), the last sentence of section 95 was intended to apply only to cases arising after 1983.
In 1989, however, the Legislature amended the last sentence of section 95 to provide that "payments of benefits made by an employer or insurer pursuant to section 51-B or 52 are considered payments under a decision pursuant to a petition unless a timely notice of controversy has been filed." P.L.1989, ch. 256, § 4 (effective September 30, 1989) (emphasis added). The plain language of section 95, as amended in 1989, requires the application of the last sentence to all cases in which payments are made pursuant to section 52, regardless of whether they arise under the early pay system. The reference to a "timely notice of controversy" is inapt when applied to payments under section 52, but that inaptness does not serve to limit the application of the last sentence to medical payments for injuries arising after 1983.
The entry is:
Decision of the Workers' Compensation Board vacated. Case remanded to the Workers' Compensation Board for further proceedings consistent with the opinion herein.
It is ordered that the employer pay to the employee $750 for her attorney fees plus her reasonable out-of-pocket expenses for this appeal.
All concurring.
NOTES
[1] Section 95 has been repealed and replaced by 39-A M.R.S.A. § 306. Maine Workers' Compensation Act of 1992, P.L.1991, ch. 885, § A-7 (effective January 1, 1993). Because the proceeding was pending on the effective date of Title 39-A, this appeal is governed exclusively by former Title 39. Riley v. Bath Iron Works, 639 A.2d 626, 627-28 (Me.1994).
[2] The last sentence of section 95 was amended prior to Rutter's petition and reduced the time limitation after the date of latest payment from 10 years to 6 years. P.L.1991, c. 615, § A-44 (effective October 17, 1991). Because Rutter's petition was filed well within six years of the latest payment, we express no opinion whether the six-year or the ten-year statute applies.
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655 A.2d 1180 (1995)
Jerry L. DeJESUS, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
No. 308, 1993.
Supreme Court of Delaware.
Submitted: January 10, 1995.
Decided: March 7, 1995.
*1185 Diane Clarke Streett, Asst. Public Defender, Office of the Public Defender, Wilmington, for appellant.
Timothy J. Donovan, Jr., Deputy Atty. Gen., Dept. of Justice, Wilmington, for appellee.
Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT, and BERGER, JJ., constituting the Court En Banc.
WALSH, Justice:
In this appeal from the Superior Court, the defendant-appellant, Jerry DeJesus ("DeJesus"), asserts several claims of error arising from his convictions of criminally negligent homicide, felony murder, attempted first degree robbery, and three counts of possession of a deadly weapon during the commission of *1186 a felony. After trial, the Superior Court merged DeJesus' conviction for criminally negligent homicide, and its accompanying weapons conviction, with his felony murder conviction, and its accompanying weapons conviction. DeJesus was then sentenced to life imprisonment for the felony murder conviction and six years imprisonment for his remaining three convictions.
On appeal, DeJesus contests the admissibility of his pretrial statements to the police, the State's ability to establish the corpus delicti of the attempted robbery charge, and several discretionary and evidentiary rulings rendered by the court during trial. We have reviewed DeJesus' claims regarding his pretrial statements and the rulings of the court during trial and find them without merit. However, after a thorough review of the record, we have concluded that the State failed to establish, aliunde the defendant's confession, the corpus delicti of attempted robbery. Because the attempted robbery charge was the predicate felony for DeJesus' felony murder conviction, we conclude that his convictions for both charges must be reversed. We therefore vacate DeJesus' convictions for felony murder, attempted robbery and the two accompanying weapons offenses. We affirm his convictions for criminally negligent homicide and its accompanying weapons offense, and thus remand to the Superior Court for resentencing the convictions of criminally negligent homicide and possession of a deadly weapon during the commission of a felony.
I
At trial the State presented evidence of the following events. Charles Craig ("Craig"), a retired policeman, testified that on November 21, 1991, at approximately 1:30 p.m., while parking his car on the 900 block of Tatnall Street in Wilmington, he observed a blue Honda automobile parked in front of him. He then saw a person he later identified as DeJesus exit the Honda from the passenger side, enter a nearby bank, and return to the car three to five minutes later. The Honda then backed up, stopped abruptly, and began to rock violently, as if the occupants were engaged in a struggle. Although Craig could see arms moving within the car, he could not discern who initiated the altercation because the rear window of the car was fogged over.
At that point, Craig left his vehicle and approached the Honda where he saw the driver of the automobile slumped with his head and torso across the passenger seat. The driver, later identified as Lawrence Robinson ("Robinson"), was bleeding from a neck wound and appeared unconscious. Meanwhile, the passenger, DeJesus, was attempting to climb into the driver's seat, apparently to start the car. Craig then asked the passenger what had happened and DeJesus replied that he had been stabbed. DeJesus then opened the driver's side door and walked to the sidewalk where he sat down and asked for help. Craig noticed that DeJesus was wearing a pair of work gloves over another pair of surgical gloves. DeJesus removed the gloves, examined his stab wound and collapsed on the sidewalk.
The police and paramedics were summoned to the scene shortly thereafter. Officer Gregory Ciotti ("Officer Ciotti") arrived on the scene and saw DeJesus on the sidewalk where he was bleeding and shouting that the driver had stabbed him.[1] Officer Ciotti rushed Robinson to the hospital in a patrol cruiser. Robinson died at the hospital, where hospital staff found one hundred dollars in his pocket. DeJesus was also taken to the hospital by ambulance and later underwent surgery for a lacerated colon.
During the struggle in the car, DeJesus had been stabbed once in the side of his abdomen. Robinson had been stabbed twice, once in the neck and once in the torso. Inside the Honda, the police found a steak knife and a white powdery substance, which tested negative as an illegal substance. The steak knife appeared to be the sole instrument that caused all three wounds to DeJesus and Robinson. The medical examiner opined that of the two wounds to Robinson, the wound to the neck was inflicted first *1187 because it appeared as if it had been partially blocked. This stab wound punctured the internal subclavian artery of the neck, which, according to the medical examiner's estimation, would have incapacitated Robinson within a matter of seconds or minutes. Therefore, he concluded that there was only a one percent chance that Robinson could have received this injury, and then have the strength to disarm and stab his attacker in the abdomen. He surmised that either wound to Robinson, however, would have proven fatal.
DeJesus was hospitalized for one week as a result of his injuries. During the course of his hospitalization, DeJesus made three statements to the police. Two statements were made on the day of the incident. DeJesus first made a statement to Detective Leon Stevenson ("Detective Stevenson"), who was dispatched to the emergency room as part of the police investigation of the incident. When Detective Stevenson arrived at the emergency room, he noticed the medical staff attempting to stabilize DeJesus in preparation for surgery. He knew little about the incident other than that DeJesus had been stabbed. Once DeJesus was stabilized, Detective Stevenson received permission from medical staff to question DeJesus. DeJesus was lying on a hospital gurney and appeared to be in great pain.
Detective Stevenson then identified himself and DeJesus quickly told him that "I got stabbed and stabbed him [Robinson] back." Although DeJesus was not viewed as a suspect of a crime at that time, Detective Stevenson recited to DeJesus the Miranda warnings from memory, albeit he neglected to inform DeJesus of his right to an attorney. Detective Stevenson then asked DeJesus if he wished to speak to him and DeJesus replied that he did.
DeJesus then elaborated on his initial declaration by saying that his friend, Robinson, picked him up that day on his lunch break to take DeJesus to cash his paycheck. After cashing his paycheck at the Wilmington Trust, DeJesus asked Robinson to drive him to another bank on Tatnall Street so that he could meet his friend Hector Hernandez ("Hernandez"). Robinson complied. After failing to locate Hernandez at the bank, DeJesus returned to the car. DeJesus claimed that as soon as he sat in the car, Robinson stabbed him in his abdomen to steal the money DeJesus received from his paycheck. The two men then struggled and DeJesus was able to stab Robinson in the neck and then in the torso. DeJesus then told the detective that he either fell out of the car or someone opened the door and carried him out. After this brief statement, DeJesus was taken into surgery. According to Detective Stevenson, although DeJesus was visibly in pain, he had no difficulty expressing himself.
DeJesus was next questioned by police detectives Martin Donahue ("Detective Donahue") and William Brown ("Detective Brown") while he was in the recovery room following the operation, about six hours after the stabbings occurred. The detectives did not give DeJesus Miranda warnings because DeJesus was viewed as a crime victim rather than a suspect based on his statement to Detective Stevenson. After receiving permission from a hospital surgeon, the detectives interviewed DeJesus. Upon asking a few preliminary questions, the detectives believed that DeJesus was conscious and coherent enough to give another statement regarding the stabbings.
Elaborating on his first statement, DeJesus told the detectives the following: he called Robinson the previous night to pick him up from work on his lunch break because DeJesus' car was not running properly. That afternoon, the men went to the Wilmington Trust on Market Street where DeJesus cashed his paycheck for $160.00. Robinson then drove DeJesus to his mother's house, where DeJesus paid his mother $60 in rent. DeJesus then told Robinson that he would take Robinson out to lunch if he would drive him to the bank on Tatnall Street to meet his friend Hernandez. He told the detectives that he had lunch plans with Hernandez so that they could discuss Hernandez's upcoming marriage. During the ride to the bank, Robinson told DeJesus that he had half an ounce of marijuana and a "quarter" of cocaine in the car. Robinson then drove to Tatnall Street where DeJesus looked for Hernandez. Robinson remained in the car. *1188 When he could not find Hernandez, DeJesus came back to the Honda and Robinson immediately stabbed him. The two men struggled, and DeJesus was able to gain partial control of the knife to stab Robinson twice. DeJesus also stated that, during the struggle, Robinson was able to remove one hundred dollars from DeJesus' pocket.
Five days later, DeJesus requested that Detectives Donahue and Brown return to the hospital. The detectives arrived at around 6:20 p.m. and saw that DeJesus had two visitors in his hospital room. The detectives did not administer Miranda warnings to him at that time. DeJesus then made a third statement which was somewhat inconsistent with his prior statements to the police.
During this statement, DeJesus told the detectives the following: during his lunch break he drove his own car to the Wilmington Trust to cash his paycheck. Outside the bank, he saw Robinson and another man he knew. DeJesus drove the third man to a residence, while Robinson followed in his car. DeJesus then paid his rent and went to the home of Jeannie Rojas ("Rojas"). Robinson again followed. DeJesus then said that he left his car at Rojas' residence and departed in Robinson's Honda. Robinson then drove DeJesus to the Tatnall Street location so that DeJesus could meet his friend Hector "Ruiz" or "Russini." When DeJesus returned to the car, Robinson began harassing him about why he took so long. DeJesus then said, "Just shut the ... up and drive." At that point, Robinson pulled the knife and stabbed him, but DeJesus was able to gain partial control of the knife to stab Robinson twice in self-defense. Again, DeJesus said that Robinson was able to remove one hundred dollars from DeJesus' breast pocket during the struggle.
Following this statement, the detectives asked DeJesus if he would come to the police station for a formal, taped interview. It was arranged that DeJesus would make a formal statement at the police station the following Saturday. On Friday, the day DeJesus was released from the hospital, Detective Donahue saw DeJesus while driving by his house. Detective Donahue stopped and conversed with DeJesus' briefly, confirming with him the time and place for DeJesus' interview the following day.
On Saturday, around three o'clock in the afternoon, DeJesus' relatives drove him to the police station. Detectives Brown and Donahue were the only police officers present for the statement, which was recorded on both an audio and video recorder. The statement began around 3:15 p.m. At the beginning of the statement, DeJesus was advised of his Miranda warnings by Detective Brown. DeJesus responded that he understood the rights explained to him and that he wished to give a statement.
DeJesus then related a story virtually identical to the story given to the detectives during the three interviews the preceding week, i.e., that Robinson stabbed him first to rob him and that he stabbed Robinson in self-defense. The detectives then raised several inconsistencies in his various statements and asked DeJesus if he wished to change his account. DeJesus responded that he was not going to alter the story from the version which he gave at the hospital. After about forty-five minutes of questioning, the interrogation appeared to conclude and the video and audio recorders were turned off.
According to the detectives, they confronted DeJesus at that time with additional inconsistencies in his story and told him that they believed that he was lying to them. The detectives confronted DeJesus with a recorded message from Robinson's telephone answering machine in which DeJesus arranged the November 22nd meeting to purchase drugs. The detectives testified that DeJesus then told them that he wanted to tell the truth about the stabbings. The recorders were then turned on again, six minutes after they were shut off.
DeJesus then told the detectives a very different story. He confessed that he stabbed Robinson first and that his motive was robbery. He proceeded to recount that he had telephoned Robinson, a drug dealer, the day before the incident and had ordered some marijuana which he intended to rob from him. DeJesus stated that he intended to sell the marijuana to obtain cash to pay for some existing fines and court costs, as well as *1189 other costs he anticipated receiving for a charge of hindering prosecution then pending in the Municipal Court. He told the detectives that he armed himself with a knife which he obtained from the kitchen area of his place of employment, and that he wore the rubber gloves to prevent his fingerprints from being left at the scene. DeJesus also stated that he owed Robinson $183.00 and that he wished to eliminate that debt by murdering Robinson.
DeJesus told the detectives that he met Robinson at the Wilmington Trust during his lunch hour. DeJesus dropped his car off at the Rojas residence and left in Robinson's Honda. DeJesus then gave Robinson one hundred dollars and the men went to the bank at Tatnall Street. DeJesus was to cash another check and give Robinson the remaining money he owed him. DeJesus had no such check. Once DeJesus returned to the car from the bank, Robinson asked for the money and an argument ensued. DeJesus then reached down and grabbed the knife which he had earlier placed on the floor of the car. DeJesus then stabbed Robinson in the neck and the chest. Robinson was able to gain control of the knife from DeJesus during the struggle, however, and he stabbed DeJesus in the abdomen.
DeJesus was arrested immediately following this recorded statement. He was later indicted on two counts of first degree murder (one count intentional murder and one count felony murder), three counts of possession of a deadly weapon during commission of a felony, and one count of first degree attempted robbery. The jury found DeJesus guilty of six crimes: criminally negligent homicide as a lesser included offense of intentional murder, felony murder, attempted robbery, and three counts of possession of a deadly weapon during the commission of a felony.
After trial, DeJesus filed a motion for judgment of acquittal notwithstanding the verdict. Although the Superior Court denied the motion, it did merge DeJesus' conviction for criminally negligent homicide, and its accompanying weapons conviction, into his felony murder conviction, and its accompanying weapons conviction.
II
Prior to trial the defense moved to suppress the statements made by DeJesus at the hospital, as well as his taped confession at the police station. After an evidentiary hearing, the Superior Court denied DeJesus' motion and his statements were admitted at trial. On appeal, DeJesus asserts the court erred in concluding that: (1) Miranda did not apply to his first three statements because DeJesus was not in "custody" during his statements at the hospital; (2) DeJesus waived his Miranda warnings at the police station; (3) DeJesus did not assert his right to silence; and (4) DeJesus' statements were voluntary. We address these claims seriatim.
A.
The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This privilege against self-incrimination governs state as well as federal criminal proceedings through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964).
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court extended the privilege to the in-custody interrogation of a person accused or suspected of a crime. Id. at 467, 86 S.Ct. at 1624. Miranda recognized that the interrogation of a suspect in a custodial setting frequently contains "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." Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984) (quoting Miranda, 384 U.S. at 467, 86 S.Ct. at 1624). Consequently, law enforcement officials may not subject an individual to custodial interrogation unless he is advised of specific rights protective of his privilege against compelled self-incrimination guaranteed by the Fifth Amendment. Miranda, 384 U.S. at 466, 86 S.Ct. at 1623-24; *1190 Marine v. State, Del.Supr., 607 A.2d 1185, 1192 (1992), cert. dismissed, ___ U.S. ___, 113 S.Ct. 28, 120 L.Ed.2d 952 (1992).
The now-familiar Miranda warnings were designed "to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process." Miranda, 384 U.S. at 469, 86 S.Ct. at 1625. If the police take a suspect into custody, and interrogate him without advising him of his fifth amendment rights, his answers cannot be introduced into evidence at a subsequent trial to establish the suspect's guilt. Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3144, 82 L.Ed.2d 317 (1984).
However, a law enforcement officer becomes obligated to administer Miranda warnings "only where there has been such a restriction on a person's freedom as to render him `in custody.'" Stansbury v. California, ___ U.S. ___, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam). The legal standard used to determine "custody" for purposes of Miranda has been clearly delineated. "[T]he ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury, ___ U.S. at ___, 114 S.Ct. at 1529; California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam); Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714; see also Minnesota v. Murphy, 465 U.S. at 430-31, 104 S.Ct. at 1143-44; Berkemer v. McCarty, 468 U.S. at 439-41, 104 S.Ct. at 3150; Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976); Marine, 607 A.2d at 1192-93; Chao v. State, Del.Supr., 604 A.2d 1351, 1355 (1992).
When determining whether an interrogation has occurred in a custodial setting, thus evoking the need for Miranda warnings, the court must review the "totality of the circumstances" surrounding the interrogation by applying an objective, reasonable person standard. Marine, 607 A.2d at 1193; see also Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (setting forth a similar test to determine whether an individual has been seized). A determination of custody "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury, ___ U.S. at ___, 114 S.Ct. at 1529. Unlike a subjective test, an objective, reasonable person standard "is not solely dependent either on the self-serving declarations of the police officers or the defendant nor does [it] place upon the police the burden of anticipating the frailties or idiosyncracies of every person whom they question." Marine, 607 A.2d at 1193 (quoting United States v. Phillips, 11th Cir., 812 F.2d 1355, 1359-60 (1987), see also Berkemer v. McCarty, 468 U.S. at 442 n. 35, 104 S.Ct. at 3151 n. 35.
At the suppression hearing, DeJesus contended that he was in custody during each of the three interviews that occurred in the hospital.[2] He claimed that he was not free to leave the hospital at any time during the interrogations, that the police approached him in an overpowering demeanor, and that his low intelligence, poor English comprehension and the influence of pain-killer medication did not allow him to fully comprehend the nature of his interaction with the police.[3] DeJesus asserted that a rational person in his position would have considered his deprivation of freedom so severe as to constitute custody which, a fortiori, required the police to recite the Miranda warnings before questioning him. Because the police failed to *1191 Mirandize him at the hospital properly, DeJesus argues that these statements, as well as his subsequent confession at the police station, were inadmissible at trial to show his guilt. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963); but cf. Oregon v. Elstad, 470 U.S. 298, 314, 105 S.Ct. 1285, 1296, 84 L.Ed.2d 222 (1985) (though Miranda requires suppression of unwarned statement, admissibility of any subsequent statement depends upon whether statement is knowingly and voluntarily made).
The Superior Court rejected these arguments at the suppression hearing, finding that:
After reviewing the totality of the circumstances of the case, the Court finds that Defendant was not in custody when he made Statements 1, 2 or 3. At no time did the police attempt to physically restrain him. The police did not place guards outside of Defendant's door, the normal practice for persons "in custody" at a hospital. More importantly, using the standard of a reasonable man, the questioning by the police while in the hospital does not rise to the degree of custody normally associated with arrest. While Defendant was not free to leave the hospital because of his severe medical problems, Defendant was not placed in a position in which a reasonable man would have inferred that he was not free to demand that the police cease questioning him. In making this finding, the Court is relying heavily on the Delaware Supreme Court's decision in Marine in which the court stated that the "frailties and idiosyncracies" of the individual being questioned were not major factors in the totality analysis. See Marine, 607 A.2d at 1193. The Court finds that, despite his low I.Q., Defendant has sufficient comprehension of the English language to understand what was happening to him, and thus not "in custody" while in the hospital.
Our standard of review of the Superior Court's finding that DeJesus was not in custody during his three statements given at the hospital is well established. "A determination of whether a defendant is in custody for Miranda purposes, being a question of fact for a trial court to make, will be sustained by an appellate court unless clearly erroneous." Marine, 607 A.2d at 1194; see also Albury v. State, Del.Supr., 551 A.2d 53, 60 (1988); Martin v. State, Del.Supr., 433 A.2d 1025, 1033 (1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); State v. Rooks, Del.Supr., 401 A.2d 943, 949 (1979).
Under this deferential standard, we must reject DeJesus' contention that the Superior Court's finding as to custody was clearly erroneous. As we have held previously, there is no per se "hospital rule" in a custody inquiry because each case must be decided on its own facts. Hammond v. State, Del.Supr., 569 A.2d 81, 93-94 (1989). Here, the facts clearly indicate that DeJesus was not formally arrested or deprived of his freedom in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. While DeJesus' freedom of movement was undoubtedly restricted throughout his hospitalization, his confinement was caused by his own physical incapacity not police compulsion. At no time did the police attempt to physically restrain DeJesus: he was not handcuffed, nor did the police guard his hospital room to prevent his escape. Further, the detectives did not impede DeJesus' release from the hospital. Rather, DeJesus left on his own accord.
During his week-long hospital stay, the police came into contact with DeJesus only three times the third meeting at his own request. Throughout this period, the detectives exhibited no behavior indicating that DeJesus was either under arrest or a suspect to a crime. Although the detectives came to view DeJesus as a suspect by the time of his third statement, they did not communicate their suspicion to him. Such undisclosed suspicions are irrelevant in the assessment of whether a person was in custody. Stansbury, ___ U.S. at ___, 114 S.Ct. at 1527-29. Because the interrogations were noncustodial, Miranda is inapplicable, even if DeJesus was questioned in a slightly coercive environment. Chao, 604 A.2d at 1355-56. Therefore, we affirm the Superior Court's ruling that the hospital statements were admissible, notwithstanding the detectives' failure *1192 to properly administer the Miranda warnings, because DeJesus was never in custody during these statements.
B.
DeJesus next contends that the State failed to establish that his confession at the police station was the product of a knowing and intelligent waiver of his Miranda rights. It is not contested that Detective Brown fully advised DeJesus of his Miranda rights at the police station and that DeJesus appeared to waive them. Rather, DeJesus argues that his waiver was ineffective because, inter alia, his limited mental capacity adversely affected his ability to understand the import of a decision to forego his rights.[4]
It is well settled that an accused may waive the rights protected by Miranda warnings "provided the waiver is made voluntarily, knowingly and intelligently." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987); Marine, 607 A.2d at 1195. The State has the burden of proving, by a preponderance of the evidence, that an individual duly waived his Miranda rights. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). The issue of waiver is not merely a question of "form." Rather, the determination is made "upon an inquiry into the totality of circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have assistance of counsel." Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979). The inquiry has two distinct dimensions:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal [sic] both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda warnings have been waived.
Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (emphasis added).[5]
DeJesus argues that the trial court erred in its findings as to both inquiries of the waiver issue. As to the first inquiry, DeJesus claims that his limited intelligence, physical condition, and cultural background combined to render his waiver involuntary. DeJesus' assertion that his personal characteristics affected the voluntariness of his waiver, however, is misplaced. The "voluntariness" of the waiver inquiry is limited to the existence of State misconduct or overreaching. "The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion." Colorado v. Connelly, 479 U.S. at 170, 107 S.Ct. at 523. It does not concern "moral or psychological pressures to confess emanating from sources other than official coercion." Id. (quoting Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 1290, 84 L.Ed.2d 222 (1985)) (emphasis added); see also Shipley v. State, Del.Supr., 570 A.2d 1159, 1168 (1990). The "voluntariness" of a waiver of Miranda rights depends *1193 entirely upon the absence of police overreaching, and not upon an abstract inquiry into the defendant's "free will" or subjective view of reality. Colorado v. Connelly, 479 U.S. at 170, 107 S.Ct. at 523 (citing Moran v. Burbine, 475 U.S. at 421, 106 S.Ct. at 1141; Fare v. Michael C., 442 U.S. at 726-27, 99 S.Ct. at 2672-73); Liu v. State, Del.Supr., 628 A.2d 1376, 1379-80 (1993).
"Absent evidence that [DeJesus'] will was overborne and his capacity for self-determination critically impaired because of coercive police conduct, his waiver of his Fifth Amendment was voluntary under th[e] Court's decision in Miranda." Colorado v. Spring, 479 U.S. at 574, 107 S.Ct. at 857; see also Liu v. State, 628 A.2d at 1380. DeJesus has not proffered evidence of police misconduct and does not argue that he was "worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit." Fare v. Michael C., 442 U.S. at 726-27, 99 S.Ct. at 2572-73. Further, while the detectives confronted DeJesus during the six minute break with the inconsistencies in his story and other evidence they discovered, they did not "resort[] to physical or psychological pressure to elicit the statements," Moran v. Burbine, 475 U.S. at 421, 106 S.Ct. at 1141, nor did they "intimidate or threaten [him] in any way." Fare v. Michael C., 442 U.S. at 727, 99 S.Ct. at 2573. When asked by the detectives as to the circumstances of his statement, DeJesus responded that he was at the police station under his own free will and that no one had threatened him to give a statement. Finally, the Superior Court concluded from the videotape that DeJesus was "willing" and "eager" to cooperate with the police. Under the circumstances, therefore, we find that the Superior Court properly held that DeJesus' waiver of his Miranda rights was voluntary as the result of an "uncoerced choice."
As to the second inquiry, DeJesus argues that he neither comprehended the panoply of his Miranda rights nor the consequences of a decision to relinquish them. Thus, he argues, his waiver was not made with "the requisite level of comprehension" to be effective. DeJesus contends that his limited intelligence and his lack of understanding of the English language, as well as his use of prescribed pain-killers, precluded him from making an intelligent waiver of his Miranda rights at the time he gave his statement at the police station.
The Superior Court, after reviewing both DeJesus' recorded statement and the testimony presented before it, concluded that the Miranda warnings were thoroughly explained to DeJesus. The court further found that DeJesus acknowledged the warnings and knowingly waived his rights under them. After viewing the videotape, the court concluded that DeJesus' "comprehension of English was sufficient to permit him to give lucid and coherent responses to the questions."
We find the Superior Court to have conducted a careful evaluation of DeJesus' waiver in the context of the totality of the circumstances. Marine, 607 A.2d at 1198. The court's conclusion that DeJesus knowingly and intelligently waived his Miranda rights is amply supported by the record. The detectives fully explained the basis for the questioning, and informed DeJesus of his rights delineated in Miranda and the consequences of a decision to forgo those rights. Additionally, the detectives ascertained that DeJesus understood the rights explained to him.
Moreover, the Fifth Amendment does not guarantee a person a fully informed choice in a decision to waive Miranda rights. Colorado v. Spring, 479 U.S. at 574, 107 S.Ct. at 857; Shipley, 570 A.2d at 1168. DeJesus has failed to show that his low intelligence prevented him from comprehending the plain meaning of his basic Miranda rights. Liu, 628 A.2d at 1380-81; accord Mathenia v. Delo, 8th Cir., 975 F.2d 444, 448 (1992), cert. denied, ___ U.S. ___-___, 113 S.Ct. 1609-10, 123 L.Ed.2d 170 (1993) (despite having mild mental retardation and intelligence quotient of only 70, circumstances surrounding confession demonstrated that defendant possessed "the requisite level of comprehension" to waive his Miranda rights). While DeJesus' cultural heritage is "certainly one of the many circumstances ... which may shape awareness of one's constitutional rights," *1194 nevertheless, his waiver must be tested by an objective standard. Liu, 628 A.2d at 1381. Here, the totality of the circumstances indicates that DeJesus' decision to waive his Miranda rights was not compromised by his cultural heritage. Id. Finally, DeJesus' claim that he had a limited understanding of the English language was directly rebutted by the testimony of several witnesses, as well as his own videotaped statement. Each indicated that DeJesus comprehended the English language sufficiently to engage in a coherent conversation with others. In short, there is no indication in the record that DeJesus failed to comprehend the substance of what the detectives told him. The factual findings of the trial court are supported by competent evidence and are not clearly erroneous. Consequently, they are binding on this Court and will not be disturbed on appeal. Albury, 551 A.2d at 60.
In conclusion, the record fully supports the required dual findings that: (1) the relinquishment of DeJesus' rights was the product of a free and deliberate choice, free of official coercion; and (2) DeJesus' waiver was made with full awareness of the nature of the rights being abandoned and the consequences of its abandonment. Moran v. Burbine, 475 U.S. at 421, 106 S.Ct. at 1141; Marine, 607 A.2d at 1199.
Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.
Moran v. Burbine, 475 U.S. at 422-34, 106 S.Ct. at 1141. Accordingly, we affirm the Superior Court's denial of DeJesus' motion to suppress his statement at the police station on the basis that his Miranda rights were knowingly, intelligently, and voluntarily waived.
C.
DeJesus next claims that the detectives did not scrupulously honor his decision to remain silent and that they likewise failed to issue fresh Miranda warnings following the break in recorded questioning at the police station. The Superior Court determined that the interrogation of DeJesus became custodial at some point during the six minute break in the questioning at the police station. During this time, the detectives confronted DeJesus with the inconsistencies in his story and the evidence they had obtained against him to accuse DeJesus of lying to them. The court held that a reasonable person in DeJesus' position would have felt that he was not free to leave at that point. See Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. We agree.
DeJesus contends that, assuming his waiver was effective during the first part of the statement given at the police station, the break in the questioning, combined with his purported invocation of his right to silence, either precluded the detectives from questioning him further, or required them to issue fresh Miranda warnings. Because the police neither scrupulously honored his right to remain silent, nor read to him fresh Miranda warnings after the break, DeJesus contends that his post-break confession is inadmissible.
We first address DeJesus' contention that he invoked his right to silence. Miranda requires that law enforcement officials not only inform a person in custody of his Fifth Amendment rights, but also that they respect his decision to exercise the rights delineated in the warnings. Moran v. Burbine, 475 U.S. at 420, 106 S.Ct. at 1140. Thus, when an accused invokes his right to silence, the police may not initiate further questioning on the crimes at issue. Id.; Dodson v. State, Del.Supr., 513 A.2d 761, 763 (1986). "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease." Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627. The invocation of the right to silence by an accused, however, does not permanently prohibit subsequent interrogation. Rather, the Supreme Court has concluded that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored." *1195 Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975) (footnote and internal quotation marks omitted); accord Dodson, 513 A.2d at 763.
DeJesus claims that he wished to end the questioning and that he communicated his intention to the detectives several times prior to the break in the recorded questioning.[6] DeJesus concedes that he never explicitly invoked his right to silence. Nonetheless, he argues that his responses to the questions posed to him indicate, perhaps inartfully, his desire to terminate the interrogation and invoke his right to silence. The Superior Court, after reviewing the videotape and its transcript, concluded that DeJesus did not invoke his right to silence. Although it recognized that a suspect may express his desire to terminate questioning by other than express language, the court found that DeJesus neither impliedly nor expressly indicated that he wished to remain silent.
The court's finding is entirely correct. Indeed, we rejected a very similar argument in Brooks v. State, Del.Supr., 229 A.2d 833 (1967). Similar to the case sub judice, the defendant in Brooks maintained his innocence after a prolonged custodial interrogation and indicated to the police that he did not wish to answer any questions differently than he had already answered. On appeal, he argued that his responses were equivalent to a request to terminate the interrogation and an invocation of his right to remain silent. Although we recognized that a desire to end questioning may be accomplished by other than express language, id., 229 A.2d at 836, we concluded that the defendant's behavior, under the circumstances, did not warrant this conclusion. Such is the case here. Although DeJesus repeatedly indicated that he was unwilling to change his story, he never communicated to the detectives that he desired to terminate the interrogation. DeJesus' statement that he was remaining steadfast to his story is not tantamount to an assertion of his right to remain silent. The court's finding, amply supported by competent evidence, is therefore affirmed.
Alternatively, DeJesus claims that the detectives were obligated to reissue Miranda warnings following the break in the interrogation at the police station. It is argued that the brief recess required the detectives to advise DeJesus again of his rights under Miranda. This Court has adopted a five-part test to determine whether police are obligated to repeat once-administered Miranda warnings. These factors include:
(1) the time lapse between the last Miranda warnings and the accused's statements;
(2) interruptions in the continuity of the interrogation;
(3) whether there was a change of location between the place where the last Miranda warnings were given and the place where the accused's statement was made;
(4) whether the same officer who gave the warnings is also conducting the interrogation resulting in the accused's statement; and
(5) whether there is a significant difference between statement elicited during the interrogation being challenged and other preceding statements.
Ledda v. State, Del.Supr., 564 A.2d 1125, 1130 (1989); see also Commonwealth v. Wideman, 460 Pa. 699, 334 A.2d 594, 598 (1975) State v. Birmingham, Me.Supr., 527 A.2d 759, 761-62 (1987). In Ledda, this Court held that Miranda warnings were not required to be given to a suspect a second time where the same police officer who administered the warnings at a traffic stop also elicited a statement from the defendant two hours later at the police barracks.
After carefully considering the five factors listed in Ledda, we believe that the detectives were not obligated to readminister Miranda warnings to DeJesus following the six minute break in the recorded questioning. First, the post-break confession came just *1196 one hour after Detective Brown read DeJesus his Miranda warnings. Second, the six-minute "interruption" in the continuity of the questioning was relatively brief. Third, the questioning took place in the same room in which DeJesus received his Miranda warnings. Fourth, Detective Brown, who issued DeJesus his Miranda warnings, was not only present, but was a central participant in the entire interrogation that resulted in DeJesus' confession. Finally, while DeJesus' confession differed significantly from his preceding statements, we are convinced that his confession was the result of a properly conducted interrogation. See Birmingham, 527 A.2d at 762. Under these circumstances, we conclude that the Miranda warnings DeJesus received when he arrived at the police station obviated any requirement that DeJesus be subsequently issued warnings after the break. See also United States v. Springer, 7th Cir., 460 F.2d 1344 (1972).
D.
We now address DeJesus' remaining claim of error arising from the suppression hearing. DeJesus argues that, independent from the requirements of Miranda, all of his statements were inadmissible because they were involuntary. It is contended that DeJesus' personal characteristics, including his physical and mental condition at the hospital and at the police station, permitted the police to "overbear" his will so that none of his statements were the product of a rational intellect and free will. Marine, 607 A.2d at 1199. DeJesus argues that the progression of coercive police activity in the hospital and at the police station culminated in his will being overborne.
Courts have long recognized that a statement obtained by police which is not the product of a voluntary choice by the defendant is inadmissible against him under the Due Process Clause of the Fourteenth Amendment. Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). The due process approach has survived the holding in Miranda and remains an independent consideration when reviewing the admissibility of statements made by defendants to law enforcement officials. Colorado v. Connelly, 479 U.S. at 163, 107 S.Ct. at 519-20. This approach recognizes that "certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned." Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985).
The question of voluntariness is a factual issue to be determined under the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973); Marine, 607 A.2d at 1199; Shipley v. State, Del.Supr., 570 A.2d 1159, 1168 (1990). The relevant inquiry in each case is whether the defendant's will was overborne when the statement was elicited. Shipley, 570 A.2d at 1168; Baynard v. State, Del.Supr., 518 A.2d 682, 690 (1986). A voluntariness inquiry requires the reviewing court to evaluate the specific tactics used by the police in eliciting the statements, the details of the interrogation, and the characteristics of the defendant. Baynard, 518 A.2d at 690. The prosecution must prove by a preponderance of the evidence that a confession sought to be used at trial was voluntary. Lego v. Twomey, 404 U.S. 477, 488, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972); State v. Rooks, Del.Supr., 401 A.2d 943, 949 (1979). In our review, however, we view the evidence in the light most favorable to the State. Marine, 607 A.2d at 1199.
In the present case, after reviewing both the videotape of DeJesus' statement and the testimony before it, the Superior Court found that the police used no threats and merely confronted DeJesus with inconsistencies in his previous statements. DeJesus contends that the court's finding that his confession was voluntary is not supported by substantial, competent evidence. He asserts that the record requires a finding that his free will was overborne by the police. In support of his argument, DeJesus refers to essentially the same factors which he claims rendered his waiver of Miranda rights involuntary, i.e., his limited intelligence, his physical condition following the stabbing, the pain-killer medication he was taking, his Hispanic background, and his poor command of the English *1197 language, all combined to subjugate his will to resist police interrogation while both in the hospital and the police station, thus rendering all his statements involuntary.
The fundamental flaw in this argument is that it refers to no evidence of police coercion during the interrogation which rises to the level of "overreaching" or outrageous behavior. It is well settled that, for a statement to be found involuntary, the court must find that it was the result of "`coercive government misconduct' which is causally related to the [statement]." Marine, 607 A.2d at 1199 (quoting Colorado v. Connelly, 479 U.S. at 163, 107 S.Ct. at 520) ("absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law"). While the physical or mental condition of the accused remains a pertinent concern as it relates to his vulnerability to government coercion, "mere examination of the confessant's state of mind can never conclude the due process inquiry." Colorado v. Connelly, 479 U.S. at 165, 107 S.Ct. at 521. Rather, the psychological and physical condition of the accused are significant in the "voluntariness calculus" only to the extent that the police exploit such characteristics to elicit incriminating statements from him.[7] Coercive police activity is a "necessary predicate" for a due process violation. Colorado v. Connelly, 479 U.S. at 167, 107 S.Ct. at 522. See also United States v. Rohrback, 8th Cir., 813 F.2d 142, 144, cert. denied, 482 U.S. 909, 107 S.Ct. 2490, 96 L.Ed.2d 381 (1987) ("Connelly makes it clear that such personal characteristics of the defendant are constitutionally irrelevant absent proof of coercion brought to bear on the defendant by the State").
It is manifest from the record that the police did not exert coercive pressure to overbear the free will of DeJesus. During his interrogation at the police station, DeJesus was asked whether he was threatened or coerced into giving a statement and he replied in the negative. The detectives were cordial throughout the questioning and made no visible attempts to exploit his particular idiosyncracies in order to elicit incriminating statements. Although the detectives utilized the time when the tape was shut off to confront DeJesus with inconsistencies in his statement and the existence of evidence which supposedly implicated him in a crime, this behavior by the police is not tantamount to coercion.[8] Therefore, we have found no evidence of improper police conduct during DeJesus' statement at the police station sufficient to rebut the trial court's findings that there was no coercion. We thus affirm such findings as supported by the record and not clearly erroneous. Marine, 607 A.2d at 1199-1200; Albury, 551 A.2d at 60; Baynard, 518 A.2d at 690-91. DeJesus's arguments contesting the trustworthiness of his confession concern the weight of the evidence, not its admissibility.
Nonetheless, DeJesus further claims that the trial judge ruled only on the voluntariness of the fourth statement (the one given at the police station) and neglected to address voluntariness with respect to the first three statements. DeJesus claims that his hospital statements were involuntary, thus rendering his confession inadmissible as an illegal product of the tainted statements. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 471, 9 L.Ed.2d 441; Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 *1198 L.Ed.2d 222; see also United States v. Medina, 5th Cir., 887 F.2d 528, 532 (1989).
Of course, "[a] confession cannot be fruit of the poisonous tree if the tree itself is not poisonous." Colorado v. Spring, 479 U.S. at 571-72, 107 S.Ct. at 856. Therefore, while we agree that the Superior Court failed to make specific findings as to the voluntariness of DeJesus' hospital statements, we are satisfied, after considering the totality of the circumstances, that his three statements to the police while he was in the hospital were voluntary. We view the evidence in the light most favorable to the State. Marine, 607 A.2d at 1199. DeJesus has again failed to proffer any evidence of coercive police conduct, which is a "necessary predicate" to a finding that a statement is involuntary for purposes of due process. Colorado v. Connelly, 479 U.S. at 167, 107 S.Ct. at 522.
Although the physical and psychological condition of DeJesus at the hospital perhaps rendered him susceptible to police influence, DeJesus has not demonstrated that the detectives exploited his condition by means of coercion or overreaching. Marine, 607 A.2d at 1199. To the contrary, the police neither threatened DeJesus nor physically or psychologically coerced him to make a statement during his hospital stay. The detectives obtained the permission of medical personnel to speak with DeJesus before each of his first two statements. At this time, the police viewed DeJesus as a crime victim rather than a suspect. His third statement was at his own initiative. In fact, DeJesus maintained his innocence during this period. His exculpatory statements at the hospital serve to undermine his claim of coercion.
We are satisfied that the record clearly demonstrates that each statement DeJesus made to the police was voluntary. Accordingly, we reject DeJesus' Fourteenth Amendment due process claim regarding the admissibility of his hospital statements.
III
We next consider DeJesus' contention that his convictions for felony murder and attempted robbery, as well as the accompanying two counts of possession of a deadly weapon during the commission of a felony, must be vacated because the State failed to prove the corpus delicti of attempted robbery the predicate felony for his felony murder conviction. DeJesus claims that the State failed to present any evidence, aside from his confession, which indicates that he either intended or attempted to rob Robinson. To support a felony murder prosecution, the corpus delicti rule requires evidence, in addition to a confession, to support the underlying felony. Since there is no such independent evidence in his case, DeJesus claims that his conviction for attempted robbery, as well as the felony murder and the two accompanying weapons convictions, must be reversed.
A.
Before reaching the merits of this claim, we must first address whether DeJesus has properly preserved the issue for appeal. Unless it is the interests of justice, this Court will decline to review those questions which were not raised and fairly presented before the trial court in the first instance. Supr.Ct.R. 8; Jenkins v. State, Del.Supr., 305 A.2d 610 (1973). Prior to trial, DeJesus moved to dismiss several counts of the indictment on corpus delicti grounds. The Superior Court did not deny the motion but, instead, deferred consideration of the motion until trial. Although DeJesus thereafter moved for an acquittal upon the close of the State's case in chief, and again after the verdict, he based his motions upon insufficient evidence, not corpus delicti grounds. The court did not address the issue sua sponte, nor did the court rule upon the "reserved" motion. The State contends that this inaction by defense counsel amounted to a tactical decision to abandon the claim, precluding review by this Court. See Duross v. State, Del.Supr., 494 A.2d 1265, 1267 (1985).
Superior Court Criminal Rule 12(e) provides that the court may defer consideration of pre-trial motions unless that deferment adversely affects the right to appeal by *1199 the party who filed the motion.[9] Thus, the court's action in deferring consideration of the motion preserved that issue through trial. Although the better practice would have been for defense counsel to request a ruling when the trial court apparently lost sight of the motion, the defendant cannot be penalized for this oversight. Under the circumstances, we conclude that the corpus delicti issue was properly before the trial court and, in the interests of justice, is subject to consideration on appeal.
B.
Simply stated, the corpus delicti rule requires the prosecution to "show some evidence of the existence of a crime, independent of the defendant's confession, to support a conviction." Shipley, 570 A.2d at 1168. Every jurisdiction in this country has adopted some variation of the corpus delicti rule;[10] it has been an established part of this State's jurisprudence for over one hundred years. See State v. Blackburn, Del.Oyer & Term., 75 A. 536, 542 (1892) (corpus delicti rule "well settled"). The doctrine was designed to prevent an individual from being convicted of a crime on the basis of his confession when there is no other evidence that a crime, in fact, has been committed. Shipley, 570 A.2d at 1168-69. Thus, it reflects a long-standing aversion to convictions obtained solely from the accused's own mouth and a preference for "evidence independently secured through skillful investigation." Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801 (1949); see also Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961). Moreover, the corpus delicti rule protects those innocent defendants who confess, for whatever reasons, to crimes they have not committed, even though their confessions may be "voluntary" within the meaning of the due process clause. The corpus delicti rule seeks
to prevent errors in convictions based upon untrue confessions alone; its foundation lies in a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused. Confessions may be unreliable because they are coerced or induced, and although separate doctrines exclude involuntary confessions from consideration from the jury, further caution is warranted because the accused may be unable to establish the involuntary nature of his statements. Moreover, though a statement may not be "involuntary" within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past.
Smith v. United States, 348 U.S. 147, 153, 75 S.Ct. 194, 197, 99 L.Ed. 192 (1954) (citations omitted).
Generally speaking, the corpus delicti rule does not require the State to provide independent evidence of each element of the offense with which the defendant is charged.[11] Rather, the rule only requires *1200 the State to present independent evidence which shows both (1) proof of injury, death or loss, according to the nature of the crime; and (2) proof of criminal means or agency as the cause of the injury, death or loss. Johnson v. State, Del.Supr., 338 A.2d 124, 125 (1975); Derrickson v. State, Del.Supr., 321 A.2d 497 (1974); Nelson v. State, 50 Del. 96, 123 A.2d 859 (1956).
In the case of a homicide, whether the charge is murder, manslaughter, or criminally negligent homicide, the corpus delicti is established when the State presents independent evidence of the death of a human being which was caused by criminal means. Shipley, 570 A.2d at 1169; Derrickson v. State, Del.Supr., 321 A.2d 497, 502 (1974). Because the State need not provide independent evidence of each element of the offense with which the defendant is charged, the mens rea of the killer may be proven by the confession alone. State v. Galvano, 34 Del. 409, 154 A. 461, 464 (1930).
Here, the corpus delicti of DeJesus' criminally negligent homicide conviction was shown by independent proof when the State introduced evidence that Robinson died and his death was caused by DeJesus' actions (stabbing). Accordingly, DeJesus does not contest his conviction for criminally negligent homicide, or its accompanying weapons offense, on corpus delicti grounds. His conviction for felony murder, however, requires a more difficult analysis.
To establish felony murder, the State had to prove that DeJesus, "with criminal negligence, cause[d] the death of another person in the course of and in furtherance of the commission or attempted commission of ... robbery in the first degree...." 11 Del.C. § 636(a)(6). Unlike other homicides, felony murder is a compound crime which in fact includes proof of two distinct offenses: an enumerated felony and homicide. Because the underlying felony is an essential element of felony murder, we must confront the issue of whether the corpus delicti of felony murder requires independent evidence of the predicate felony, in addition to proof of a death caused by criminal agency. The question is one of first impression for this Court. There is a split of authority from other jurisdictions which have addressed the issue:
Felony murder cases have posed the problem with special difficulty. Under the traditional application of the corpus delicti formulation, the elements of felony murder include the predicate felony as well as the fact of death and the causing of it in a criminal way; thus corroborating evidence would have to prove the predicate felony. Most courts have balked at this and have held that the corroborating evidence need not tend to prove the predicate felony.
1 McCormick on Evidence § 145 at 558 (Strong 4th ed. 1992).
The State urges this Court to adopt the position taken by a majority of courts which have confronted this issue: so long as the corpus delicti of the homicide (death caused by criminal agency) is established by independent evidence, the predicate felony may be shown by confession alone. See Hart v. State, 301 Ark. 200, 783 S.W.2d 40, 42 (1990); People v. Cantrell, 8 Cal.3d 672, 105 Cal. Rptr. 792, 504 P.2d 1256 (1973); State v. Oliveras, 210 Conn. 751, 557 A.2d 534, 536-37 (1989); Reyes v. State, Fla.App., 155 So.2d 663 (1963); Harrison v. State, 269 Ind. 677, 382 N.E.2d 920 (1978), cert. denied, 441 U.S. 912, 99 S.Ct. 2010, 60 L.Ed.2d 384 (1979); Ballard v. State, 333 Md. 567, 636 A.2d 474 (1994); People v. Hughey, 186 Mich.App. 585, 464 N.W.2d 914, 916 (1990); Gentry v. State, Miss.Supr., 416 So.2d 650, 652-53 (1982); State v. Johnson, 31 N.J. 489, 158 A.2d 11, 19-20 (1960); Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343, 348 (1974); State v. Bishop, Utah Supr., 753 P.2d 439, 477-78 (1988).
These courts generally hold that the crime of felony murder should exact the same corpus delicti which is required in all homicide cases. In such cases, the prosecutor need only establish independent evidence of a death caused by criminal agency. There is no requirement that the prosecution show independent evidence of the mens rea of the defendant, which would distinguish the degree of the homicide committed, because the mental element may be established solely by the defendant's confession. Hughey, 186 Mich.App. 585, 464 N.W.2d at 916. Similarly, *1201 proof of the remaining elements of felony murder, including the commission of the underlying felony, may be demonstrated by the confession alone. Id.; Gentry v. State, 416 So.2d at 652-53.
North Carolina has adopted a variation of this approach. North Carolina also requires independent proof of a death by criminal agency, but does not require that the corpus delicti of the underlying felony be proven by independent evidence, provided that the "confession, otherwise corroborated as to the murder, includes sufficient facts to support the existence of the felony." State v. Franklin, 308 N.C. 682, 304 S.E.2d 579, 586 (1983), overruled on other grounds, State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985). By this approach, North Carolina has adapted a "trustworthiness" analysis, long recognized in the federal courts, and applied it in the context of felony murder.
Under a "trustworthiness" analysis, "the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti." The State, however, is required "to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement." Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101, 108-09 (1954).[12] In other words, the adequacy of the corroborative evidence is measured not by its tendency to establish the corpus delicti but by the extent to which it supports the trustworthiness of the defendant's statement. United States v. Johnson, D.C.Cir., 589 F.2d 716, 718-19 (1978). Once a defendant's confession is sufficiently corroborated to render it trustworthy, the prosecution may then use the confession to establish the corpus delicti of the crime.
Under a trustworthiness approach to felony murder, the State need not show the corpus delicti of the underlying felony by independent evidence provided it produces substantial corroborative evidence to render the defendant's confession trustworthy. Franklin, 308 N.C. 682, 304 S.E.2d at 586. Once the State introduces evidence which "goes to fortify the truth of the confession or tends to prove facts embraced in the confession," Opper v. United States, 348 U.S. at 92, 75 S.Ct. at 164, the confession is considered trustworthy and the State may then use the confession to establish the corpus delicti of the predicate felony.
The final approach to felony murder cases requires the prosecution to demonstrate independent evidence of the corpus delicti of both the homicide and the predicate felony. State v. Bradford, 254 Kan. 133, 864 P.2d 680, 685 (1993); see also People v. Emerson, 203 Mich.App. 345, 512 N.W.2d 3 (1994); Gribble v. State, Tex.Crim., 808 S.W.2d 65, 71 (1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991) (capital murder requires proof of felony). These courts emphasize that felony murder is a compound crime consisting of both a homicide and a felony thus, the State should be required to produce evidence independent of the defendant's confession for each crime. See Emerson, 203 Mich.App. 345, 512 N.W.2d at 4-5 ("premeditated murder is a single crime, in which the element of deliberation merely serves to enhance the severity of the offense, whereas felony murder is a compound crime consisting of both a murder and a felony"). Consequently, each crime having its own distinct corpus delicti must be established by *1202 independent evidence. Gribble, 808 S.W.2d at 71.
We believe that the "independent evidence" standard enjoys greater consistency with the objective of the corpus delicti rule, as well as the prior holdings of this Court. Our law requires "some evidence of the existence of a crime, independent of the defendant's confession, to support a conviction." Bright v. State, Del.Supr., 490 A.2d 564, 569 (1985). The corpus delicti rule serves to protect those defendants who may be pressured to confess to crimes that they either did not commit or crimes that did not occur. Id. In our view, a person is just as likely to confess to a non-existing felony as he is to confess to a non-existing murder. Accord Emerson, 203 Mich.App. 345, 512 N.W.2d at 5; see also Gribble, 808 S.W.2d at 71. Therefore, we find no compelling reason why the corpus delicti rule should not apply with equal force to compound crimes where one crime has occurred, but, absent the confession from the defendant, there is no evidence indicating that the underlying crime in fact has taken place.
By legislating the felony murder rule, 11 Del.C. § 636(a)(6), the General Assembly has recognized that killings which result from the commission or attempted commission of a felony, even if unintended, are deserving of harsh punishment. In such cases, the factor that elevates a criminally negligent or reckless killing to first degree murder is the added element that the death occur "in the course of and in furtherance of the commission or attempted commission of" a felony. 11 Del.C. § 636(a)(6); Flamer v. State, Del. Supr., 490 A.2d 104 (1983); Riley v. State, Del.Supr., 496 A.2d 997, 1021 (1985). It is well established that the State cannot sustain a felony murder conviction without first proving that a felony occurred. Cf. Flamer, 490 A.2d at 118. Proof of the underlying felony is thus a sine qua non to a felony murder conviction. Were we to hold that, in a felony murder prosecution, the State must prove only the corpus delicti of homicide, but it need not establish independent evidence of the predicate felony, we would, in effect, relax the corpus delicti rule in its application to the most serious crimes. In our view, the purpose of the rule is better served by requiring the prosecution to introduce "some" independent evidence of the corpus delicti of each crime it charges.
This approach is also consistent with our precedent. In Stokes v. State, Del.Supr., 402 A.2d 376, 382 (1979), this Court applied the corpus delicti rule in the context of connected crimes, i.e., those crimes arising out of the same act, event, or occurrence. Stokes involved a defendant charged with, inter alia, intentional murder and robbery. Although the State presented independent evidence in its case in chief which established the corpus delicti of the intentional murder, it failed to present any evidence, other than the defendant's confession, indicating that the victim was robbed by the defendant. This Court held that the corpus delicti was not independently established, and reversed the robbery conviction.
We perceive no convincing reason why our holding in Stokes as to connected crimes should not apply equally to compound crimes such as felony murder. In both situations, the defendant is charged with multiple crimes, and each crime alleged should be corroborated by independent evidence. The purpose of the corpus delicti rule is not served by permitting the State to rely solely upon the defendant's single, extrajudicial confession to establish the corpus delicti of multiple crimes charged against him. Accordingly, we affirm our holding in Stokes and find its teaching equally applicable in the felony murder context. Therefore, we hold that, because felony murder necessarily involves both a homicide and a separate felony, to satisfy the corpus delicti rule in such cases, the State must provide corroborative evidence that (1) a death occurred; (2) the death was caused by criminal agency; and (3) the underlying predicate felony was committed.
C.
We next consider whether the State established sufficient independent evidence at trial to corroborate its charge that Robinson was killed during the course of an attempted robbery. As noted earlier, the State need only present "some evidence" aliunde *1203 the confession to sustain its burden under the corpus delicti rule. State v. Kehm, 48 Del. 372, 103 A.2d 781 (1954); Nelson, 50 Del. 96, 123 A.2d at 862. The independent evidence tending to establish the corpus delicti need not be shown beyond a reasonable doubt or by a preponderance of the evidence. Nelson, 50 Del. 96, 123 A.2d at 862. There is no quantum requirement for the independent evidence, so long as the evidence as a whole proves the corpus delicti beyond a reasonable doubt. Jenkins v. State, Del.Supr., 401 A.2d 83, 86 (1979); Johnson, 338 A.2d 124; Nelson, 123 A.2d at 862; Kehm, 48 Del. 372, 103 A.2d 781.
Under Delaware law, a person may be convicted of robbery if he uses or threatens to use immediate force upon another "in the course of committing theft" with the intent to "compel the owner of the property ... to deliver up the property." 11 Del.C. § 831(2); Morrisey v. State, Del.Supr., 620 A.2d 207, 213 (1993). A person is guilty of theft when he "takes, exercises control over or obtains property of another person intending to deprive him of it or appropriate it." 11 Del.C. § 841. If, during the course of the robbery, the defendant displays a deadly weapon, is armed with and uses or threatens to use a dangerous instrument, or otherwise causes physical injury to any nonparticipant, the degree of the crime is elevated from second to first degree robbery. 11 Del.C. § 832.
A person is deemed to have "attempted" to commit a crime if he "intentionally does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of a crime." 11 Del.C. § 531(2). Substantial step is defined as "an act or omission which leaves no reasonable doubt as to the defendant's intention to commit the crime for which he is charged with attempting." 11 Del.C. § 532. In order to carry its burden of proving the elements of attempted robbery in this case, therefore, the State had to establish that DeJesus took a substantial step to take some property from Robinson by the use or threat of force, and that he had the specific intent to commit the offense of robbery at that time.
This Court has not addressed the issue of corpus delicti as it relates to an attempted crime. Our previous encounters with the corpus delicti rule involved consummated offenses. See State v. Blackburn, 23 Del. 479, 75 A. 536 (homicide); State v. Miller, 14 Del. 564, 32 A. 137 (1892) (same); State v. Galvano, 34 Del. 409, 154 A. 461 (same); Nelson v. State, 50 Del. 96, 123 A.2d 859 (same); Derrickson, 321 A.2d 497 (same); Shipley v. State, 570 A.2d 1159 (same); State v. Hand, 15 Del. 545, 41 A. 192 (1894) (arson); Johnson v. State, 338 A.2d 124 (rape); Jenkins v. State, 401 A.2d 83 (possession of a deadly weapon during the commission of a felony); Stokes v. State, 402 A.2d 376 (1979) (robbery); Bright v. State, 490 A.2d 564 (rape and kidnapping; Clendaniel v. Voshell, Del. Supr., 562 A.2d 1167 (1989) (driving while intoxicated).
We recognize that, in the context of inchoate crimes, such as attempts, the traditional application of the rule is difficult because, by definition, these crimes do not include a tangible injury or loss which can be isolated as the focus of the corpus delicti. See 1 McCormick on Evidence, § 145 at 560; State v. Parker, 315 N.C. 222, 337 S.E.2d at 493; see also Smith v. United States, 348 U.S. at 154, 75 S.Ct. at 198. In a robbery case, the corpus delicti is clearly discernible as the physical property taken by force from another. In a case of attempted robbery, however, the injury or loss is far less tangible and, indeed, no loss or taking at all may occur where the robber's efforts are frustrated. In such cases, the defendant is moving toward the commission of a crime which is not, and may never be, consummated. Thus, an inquiry into whether a defendant engaged in conduct which is a "substantial step" toward a robbery may be more demanding than whether there has been a physical "taking" of property. Nevertheless, we believe that the crime of attempted robbery carries a distinct corpus delicti. In order to establish the corpus delicti for any crime, the prosecution must introduce independent evidence of the criminal conduct forming the gravamen of the offense. See 1 McCormick on Evidence, § 145 at 558 ("major" or "essential" elements of offense). The gravamen of a robbery or attempted robbery charge is a *1204 "taking" by "force." See State v. Norris, 45 Del. 333, 73 A.2d 790 (1950) (the common law offense of robbery required two elements: taking of property (larceny) by violence or by putting the person in fear).
We therefore hold that, in an attempted robbery case, the State must establish some evidence, aliunde the defendant's confession, which tends to show that the defendant (1) attempted to take, exercise control over or obtain the property of another (2) by the use or threat of immediate force. As in a homicide, the State may rely solely upon the defendant's confession to establish the specific intent (mens rea) to commit the offense of robbery.
Here, the "stabbing" of Robinson by DeJesus plausibly demonstrates the use of force. Nevertheless, the stabbing is, by itself, insufficient independent evidence to sustain the corpus delicti of an attempted robbery. It must be shown that DeJesus used or threatened force as a means to take the property of Robinson. Although the taking and the application of force need not be contemporaneous, there must be "a causal connection between the use or threat of force and the [attempted] theft." Delaware Criminal Code with Commentary § 831 at 258 (1973); Winborne v. State, Del.Supr., 455 A.2d 357, 359 (1982). If it is shown that DeJesus brandished the knife or otherwise threatened Robinson in order to take or appropriate his property, the State has sustained its burden of proving the corpus delicti of the crime. Without such independent evidence that DeJesus attempted to "take" or "appropriate" the property of Robinson, however, his convictions cannot stand.
The State insists that it has met this threshold. According to its theory of the case, originating from the confession, DeJesus arranged to buy some marijuana from Robinson as a pretext to rob him. DeJesus planned to steal the marijuana so that he could sell it in order to pay the $224 he owed in fines and court costs. DeJesus also planned to kill Robinson to eliminate the $183 debt he owed him. On the day of the incident, DeJesus armed himself with a knife that he obtained from his place of employment and Robinson picked him up on his lunch hour.
After cashing his paycheck, DeJesus gave Robinson one hundred dollars in partial payment for his debt. DeJesus told Robinson that he had another check, and the two men drove to the bank. Although DeJesus had no such check, he entered the bank under the guise of cashing the check to pay the remaining amount he owed to Robinson. When DeJesus returned to the car without any money, the two men argued. Robinson then began to back the car and DeJesus suddenly stabbed him in the neck. During the next three to five minutes, the men struggled, and Robinson was able to gain control of the knife and stab DeJesus in the abdomen. As Robinson became weaker due to blood loss from his neck wound, DeJesus again gained control of the knife and stabbed Robinson a second time in the torso. DeJesus then attempted to gain access to the driver's side so that he could flee. Because he was too weak to do so, he got out of the car and collapsed on the sidewalk.
In support of its theory, the State points to the following independent evidence which it introduced at trial: (1) the recorded message taken from Robinson's answering machine in which DeJesus told Robinson that he wanted to buy some marijuana; (2) the one hundred dollars found in Robinson's pants pocket; (3) the white powdery substance found in the car which resembled drugs; (4) the steak knife found in the car; (5) DeJesus' fines and court costs; and (6) eyewitness testimony that DeJesus climbed into the driver's seat immediately after the struggle with Robinson. The State contends that this evidence certainly satisfies its relatively low threshold of proof requiring "some evidence" of an attempted robbery. We disagree.
As we view the evidence, the State failed to establish, aliunde DeJesus' confession, the corpus delicti of attempted robbery. At a minimum, the evidence the State presented at trial was equivocal and, in several key respects, directly contradicted DeJesus' confession. The answering machine tape, the drug-like substance found in the car, and the one hundred dollars found in Robinson's pocket are indicative of a drug transaction *1205 not an attempted robbery. In fact, it is more plausible that DeJesus gave Robinson one hundred dollars in payment for drugs and the men struggled after DeJesus discovered that the substance in the car was not drugs. We find the evidence significantly more consistent with a drug transaction gone awry than an attempted robbery. Indeed, the State's theory that DeJesus initially gave Robinson the one hundred dollars with the intention to "steal" it later is illogical. In short, neither this evidence, nor any reasonable inference from this evidence, demonstrates that DeJesus ever attempted to "take" or "appropriate" any property ("drugs" or the one hundred dollars) from Robinson.
Further, the knife that was found in the car does not establish an attempted robbery. DeJesus' confession that he took the knife from his employer was contradicted by the evidence at trial. DeJesus' supervisor testified that kitchen knives were not normally kept in the company cafeteria. He also testified that he could not identify the steak knife found in Robinson's car as a knife he had ever seen in the work place. In fact, there was testimony at trial that Robinson commonly kept a knife in his car. Therefore, while the knife was evidence as the instrument which caused Robinson's death, it was not independently shown that it was wielded by DeJesus as a means to threaten Robinson so that DeJesus could take his property.
Moreover, while DeJesus' fines and court costs could ostensibly provide him with a motive for robbery, this evidence is also not indicative of the corpus delicti of attempted robbery. DeJesus' fines and costs demonstrated that DeJesus owed money, not that he attempted a robbery. Assuming that a person who is indebted has a motive to steal, motive is insufficient to supply the corpus delicti unless it is demonstrated that one's motive materialized into intent and action.
The State also claims that DeJesus' purported attempt to gain access to the driver's side after the struggle indicates his desire to drive away or flee, which is an admission of guilt. Thomas v. State, Del.Supr., 467 A.2d 954 (1983); Tice v. State, Del.Supr., 382 A.2d 231 (1977); 1 McCormick on Evidence, § 263. While we agree that flight may, under appropriate circumstances, be relevant as tending to show an admission of guilt, we do not believe that conclusion is warranted here. In this case, it is just as likely that DeJesus, suffering from a serious wound, was attempting to go to the hospital to seek medical attention or simply flee from the scene of a violent confrontation. This equivocal evidence does not tend to show that DeJesus ever attempted to take the property of Robinson by force or threat of force.
The State finally contends that an attempted robbery is evidenced by a general knowledge that robbery or attempted robbery is commonly a motive for murder and that drug dealers make convenient robbery targets. Ferguson v. State, Del.Supr., 642 A.2d 772 (1994); Sullivan v. State, Del.Supr., 636 A.2d 931 (1994); Wright v. State, Del.Supr., 633 A.2d 329 (1993); Riley v. State, Del.Supr., 496 A.2d 997 (1985). According to the State, the death of Robinson itself is evidence of a felony (because a felony is commonly a motive for murder), and this evidence of a felony likewise causes the killing to constitute felony murder. The circularity of this rationale is quite apparent. Even if the State's correlation were true, this Court has never embraced the position that such generalizations are an adequate substitute for proof. Moreover, the State failed to present such evidence at trial and we cannot entertain this claim for the first time on appeal. Supr. Ct.R. 8.
We find that DeJesus' admission that he attempted to rob Robinson is insufficiently corroborated under the corpus delicti rule. There were no witnesses who heard or saw the events immediately preceding the struggle, nor did anyone see which man had produced the knife. No passersby saw DeJesus wielding the knife or threaten Robinson prior to the struggle. Although circumstantial evidence is certainly sufficient to corroborate a defendant's confession, such evidence is lacking here. Despite the fact that the evidential threshold imposed upon the State only requires "some proof," the independent evidence must "touch" or "concern" the corpus delicti of the criminal act or injury the law seeks to prohibit. See Lemons v. State, 49 *1206 Md.App. 467, 433 A.2d 1179, 1182 (1981). Here, the State had the burden of establishing an attempt by DeJesus to take or appropriate Robinson's property by force or threat of force. We find no evidence cited by the State, aside from DeJesus' confession, which permits a reasonable inference that this activity occurred. See also Monroe v. State, Del.Supr., 652 A.2d 560, 561 (1995). In fact, most of the evidence at trial rebutted DeJesus' confession. Apart from the conflicting evidence noted earlier, the medical examiner testified that the severity of Robinson's neck wound created only a one percent chance that DeJesus initiated the struggle and stabbed Robinson first. This testimony conflicted directly with DeJesus' confession and the State's theory of the case. It is significant that the jury rejected the charge of intentional murder, opting to find DeJesus guilty of the lesser included offense of criminally negligent homicide. That finding, together with the confession-supported verdict of felony murder, suggests the jury's belief that Robinson's death occurred in a spontaneous, violent confrontation.
Without his confession, there was simply no tangible evidence indicating that DeJesus either planned a robbery or attempted to commit one. On four occasions prior to his confession, DeJesus steadfastly denied committing either the murder or the robbery. He confessed only after the police revealed that they had incriminating evidence in regard to his participation in the murder. In short, the only evidence that the crime of attempted robbery actually occurred was DeJesus' confession that it did.
[A] confession cannot be used to corroborate the corpus delicti. The corpus delicti can corroborate the confession but the confession cannot be used to bolster up and support the body of the crime itself; the body of the crime must stand alone and be established firmly....
State v. Galvano, 34 Del. 409, 154 A. at 463.
In this case, it is very likely that DeJesus confessed to criminal conduct which did not exist. The police are under an obligation to investigate and secure independent evidence so that confessions are corroborated to ensure their trustworthiness. Smith v. United States, 348 U.S. at 153, 75 S.Ct. at 197. The corpus delicti rule is a guaranty that confessions, an appropriate evidential device, are supported by independent evidence. The rule strikes the appropriate balance between protecting innocent defendants from their false confessions and the State's interest in prosecuting those who deserve punishment.
Although his statements were otherwise admissible under Miranda and the due process clause, the circumstances surrounding DeJesus' confession render his admissions highly suspect. A psychologist and a retardation expert testified that DeJesus was retarded, highly suggestible, and that he would say anything to appease authority figures if pressured. Moreover, DeJesus spoke Spanish as his natural language and he was not provided an interpreter during the interrogations. Further, DeJesus was evidently in pain while the police questioned him, despite the influence of pain-killing medication. Finally, DeJesus confessed only after the police confronted him with their suspicions. DeJesus then confirmed their suspicions in his confession, and the evidence at trial contradicted his confession in certain key respects. Thus, the confession was not particularly trustworthy, underscoring the need for independent, corroborative evidence. Compare Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (fundamental due process guaranteed by Fourteenth Amendment requires proof beyond a reasonable doubt of each element of the offense with which defendant is charged). Such evidence was clearly lacking here. Accordingly, we reverse the convictions of DeJesus for felony murder and attempted robbery, as well as their accompanying two charges of possession of a deadly weapon during the commission of a felony.
IV
DeJesus next claims that the trial court abused its discretion in limiting the scope of testimony of his expert witness. On the final day of testimony at DeJesus' trial, the defense called David White ("White") as an expert witness in mental retardation. White was employed as a counselor to persons with mental disabilities in the Pennsylvania court *1207 system. On the first day of trial, the defense had notified the prosecution that White would testify as an expert witness. See Super.Ct.Crim.R. 16. As required by Rule 16, the notice recited that White had administered tests to DeJesus and that he would express his opinion that DeJesus suffered from mental retardation.
On direct examination, White testified that mentally retarded individuals "confess often to crimes they haven't committed." The State immediately objected. At sidebar, the prosecutor argued that this testimony went well beyond the discovery notice, thereby causing the State unfair prejudice because it could not prepare for cross-examination or provide its own expert for rebuttal. Agreeing with the State, the trial judge directed defense counsel to stay within the bounds of the discovery notice and instructed the jury to disregard White's last answer.
On appeal, DeJesus concedes the discovery violation but contends that the court abused its discretion in limiting the expert's testimony as a sanction for that violation. DeJesus contends that the trial judge should have imposed a less drastic sanction, such as granting a continuance, in order to allow the State sufficient time to prepare for cross-examination and to obtain a counter-expert. We find this claim without merit.
The trial judge enjoys broad discretion in determining the appropriate sanction for a discovery violation. Doran v. State, Del.Supr., 606 A.2d 743, 745 (1992). In determining the sanction, the court must weigh all relevant factors which may include: the reasons for the violation, the extent of any prejudice to the opponent, and the feasibility of curing the violation rather than excluding the evidence. Id. at 745 n. 3. Before rendering its decision, the court should balance the needs of society with the defendant's right to a fair trial. Wheat v. State, Del.Supr., 527 A.2d 269, 275 (1987).
Rule 16(d)(2) expressly provides that a sanction for a discovery violation may include the court prohibiting the introduction of the evidence not disclosed. This sanction was entirely appropriate here. The only explanation proffered by the defense as to why the identity of White was not disclosed until the first day of trial, nearly one year after DeJesus' arrest, was that White had only recently become involved in the case. Moreover, the true substance of his testimony was not divulged until the final day of trial well after the State had rested its case. See State v. Bowling, R.I.Supr., 585 A.2d 1181, 1184 (1991). Under the circumstances, we are satisfied that the court's decision to exclude part of White's testimony did not constitute an abuse of discretion.
V
DeJesus' next claim is that he was denied a fair trial when the Superior Court denied his motion for a mistrial. At trial, the State called the medical examiner to testify regarding the cause of the victim's death. At the conclusion of his testimony, the trial judge asked the medical examiner several questions. In answering the court's questions, the witness identified one of the attorneys for DeJesus as a public defender. Defense counsel moved for a mistrial. The trial judge took the motion under advisement and offered to deliver an immediate cautionary instruction to the jury. Defense counsel declined the court's offer to give a cautionary instruction.
Defense counsel did, however, renew its motion for a mistrial after the jury rendered its verdict. The court denied the motion. In its opinion, the court reasoned that this isolated and unsolicited reference to counsel as a public defender did not provoke a response in the jury which pervaded the entire trial and thus was not sufficiently prejudicial to warrant a new trial. We agree.
A motion for a mistrial based upon an impropriety occurring at trial is directed to the sound discretion of the trial court. McCloskey v. State, Del.Supr., 457 A.2d 332, 337 (1983); Lovett v. State, Del.Supr., 516 A.2d 455, 475 (1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1898, 95 L.Ed.2d 504 (1987). It is the trial judge, not the appellate court, who is necessarily in the best position to gauge the effect and possible prejudicial impact of the improper comment. Thompson v. State, Del.Supr., 399 A.2d 194, 199 (1979).
*1208 In this case, the court's ruling was plainly correct. While reference to the impecunious condition of the defendant in a trial involving a robbery charge may be highly prejudicial, the isolated and unsolicited remark by the witness did not warrant a mistrial here. Compare Bailey v. State, Del.Supr., 521 A.2d 1069, 1076 (1987) (reference to defendant's prior conviction during course of subsequent proceedings is cause for mistrial ipso facto). The prosecution did not elicit the remark. Additionally, the trial court promptly interrupted the witness sua sponte in mid-sentence. It is uncertain whether the jury was even alerted to the identification of defense counsel as a public defender. Finally, defense declined the court's offer to give a curative instruction to the jury. Under the circumstances, we believe the trial court properly exercised its discretion in ruling that any possible prejudice flowing from the improper remark did not warrant a new trial.
VI
DeJesus next claims that the court abused its discretion by not allowing him to present surrebuttal evidence. The trial court declined to permit the defendant to recall a witness who testified earlier for the defense. The trial judge ruled the proffered evidence largely cumulative. We find no basis to disturb the trial court's discretionary ruling in that respect. Herhal v. State, Del.Supr., 283 A.2d 482, 484 (1971).
VII
Finally, DeJesus contends that a portion of his confession referring to other crimes should not have been admitted at trial because it ran afoul of the dictates of Delaware Rule of Evidence 404(b) and Getz v. State, Del.Supr., 538 A.2d 726 (1988). Prior to opening statements, defense counsel requested that the court redact DeJesus' confession to eliminate his statements that his motive for the attempted robbery and murder of Robinson was to obtain money for the $224.00 in fines and court costs which he owed, as well as the further expenses he anticipated for the pending charge for hindering prosecution. DeJesus sought to exclude part of his confession and any testimony regarding those crimes. The State countered that the evidence was necessary to demonstrate the motive of DeJesus in committing the charged crimes, and also indicated that DeJesus was alert at the time of his confession, thus rebutting his contention that he was so disoriented during his interrogation that his confession was not the product of a rational intellect.
The trial court determined that the evidence was admissible under Rule 404(b) to prove motive and that, after the jury received a limiting instruction, the probative value of the evidence was not substantially outweighed by its prejudice. The trial court then delivered defense counsel's suggested cautionary instruction to the jury, which emphasized the minor nature of the hindering prosecution charge and that it was a mere accusation for which DeJesus' guilt had yet to be determined.
A careful analysis of the Getz factors leads us to conclude that the Superior Court was correct in allowing the evidence at trial. First, the evidence went to at least one central issue in the case: DeJesus' mental state during his confession to the police. Moreover, motive is one of the "purposes" listed in Rule 404(b). Also, the crimes were far from remote and the jury was instructed using the language suggested by defense counsel. These factors notwithstanding, DeJesus contends that the unresolved hindering prosecution charge was a mere accusation which was not shown by evidence which was "plain, clear and conclusive." Getz, 538 A.2d at 734 (quoting Renzi v. State, Del.Supr., 320 A.2d 711, 712 (1974)). In this case, however, the emphasis was not on the crimes or acts themselves but, rather, on the consequences they had on DeJesus financially and his mental state during his confession. We therefore find no abuse of discretion in the court's ruling in this respect.
VIII
In sum, we find no error in the Superior Court's ruling regarding the admissibility of DeJesus' pretrial statements. We conclude, however, that the State is required to present some independent, corroborating evidence *1209 of the corpus delicti of both the murder and its predicate felony and, in this case, the State has failed to establish the corpus delicti of attempted robbery. The convictions for felony murder, attempted robbery, and the related weapons offense are REVERSED. DeJesus' remaining claims of error implicate the discretion of the trial judge and we find no abuse of discretion. Therefore, DeJesus' convictions for criminally negligent homicide and its accompanying weapons charge are AFFIRMED.
At sentencing, the court merged DeJesus' convictions for criminally negligent homicide and its companion weapons offenses into his convictions for felony murder and its weapon offense. Upon remand, the trial court must resentence DeJesus for his convictions for criminally negligent homicide and one count of possession of a deadly weapon during the commission of a felony. Jurisdiction is not retained.
NOTES
[1] DeJesus, a native of Puerto Rico, evidently spoke Spanish as his primary language, yet he expressed himself in English during this entire incident.
[2] The State did not dispute that each interview constituted an "interrogation" as defined under Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
[3] At the suppression hearing, Dr. Pedro Ferreira, a psychologist, testified that DeJesus was mildly retarded with an intelligence quotient of 71. He also testified that DeJesus has poor English comprehension skills and may appear to participate in a conversation in English when he does not know what he is talking about. He further testified that DeJesus does not function well in stressful situations, clings to authority, and is psychologically compelled to answer questions from authority figures because of the nature of his Hispanic upbringing and heritage.
[4] The Superior Court concluded that the first part of the questioning at the police station was noncustodial because DeJesus went to the police station voluntarily for questioning and to give a statement. See California v. Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520; Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714; see also Hanna v. State, Del.Supr., 591 A.2d 158, 165 (1991). In any event, the court found that even if DeJesus was in custody at this point, the police nonetheless fulfilled their obligations under Miranda by reading DeJesus his rights prior to the interrogation.
[5] Our reliance on Moran in this case is limited to the two-prong test crafted by the Supreme Court to test the efficacy of waiver. In Moran, the United States Supreme Court in a separate ruling "refused to adopt a rule requiring police to inform a suspect of an attorney's efforts to reach him." Bryan v. State, Del.Supr., 571 A.2d 170, 177 (1990). We accepted the Supreme Court's invitation in this latter ruling to adopt a more stringent rule under the Delaware Constitution. See id. Our reliance on Moran today is directed to a different issue and is not intended to modify our holding in Bryan.
[6] We need not address the defendant's right to counsel during questioning because at no time during the interrogation did DeJesus request to speak to an attorney. See Davis v. United States, ___ U.S. ___, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
[7] Courts generally have refused to consider the mental conditions of the suspect, even those which render him highly susceptible to suggestion, in the absence of either physical or psychological coercion by the government authority. See, e.g., Bell v. Lynaugh, 5th Cir., 828 F.2d 1085, cert. denied, 484 U.S. 933, 108 S.Ct. 310, 98 L.Ed.2d 268 (1987); United States v. Gordon, W.D.La., 638 F.Supp. 1120 (1986), aff'd, 5th Cir., 812 F.2d 965, cert. denied, 483 U.S. 1009, 107 S.Ct. 3238, 97 L.Ed.2d 743 (1987).
[8] Lest our opinion be misconstrued, we do not condone use of incommunicado interrogation by police. This practice inevitably introduces a credibility dispute between the defendant and the interrogator at a suppression hearing and/or at trial. The use of recording devices throughout an interrogation minimizes such danger by injecting objective proof into the inquiry. While DeJesus has not claimed that the detectives acted in an egregious manner during the six minute break, other cases may warrant closer scrutiny into police conduct when a voluntariness inquiry is undertaken by a court.
[9] Superior Court Criminal Rule 12(e) provides in part:
Rule 12. Pleadings and Motions Before Trial; Defenses and Objections
(e) Ruling on Motion; Certification for Appeal.
A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issues or until after verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected.... (emphasis added).
[10] In 1984, Massachusetts became the final jurisdiction to adopt a variation of the corpus delicti rule. See Commonwealth v. Forde, 392 Mass. 453, 466 N.E.2d 510 (1984).
[11] As one commentator has noted:
The traditional approach [to the corpus delicti rule] has been to require that the elements of the offense be carefully distinguished and that the corroborating evidence tend to show each of those elements. A growing number of courts, however, are abandoning the strict requirement that the corroborating evidence tend to prove all the elements of the corpus delicti. Thus the corroborating evidence need only tend to show the "major" or "essential" harm involved in the offense charged and not all of the elements technically distinguished.
1 McCormick on Evidence § 145 at 558 (Strong 4th ed. 1992).
[12] Since the "trustworthiness" approach to corroboration was enunciated by the United States Supreme Court over forty years ago, see Opper v. United States, 348 U.S. at 93, 75 S.Ct. at 164, it has gained favor among a significant number of federal and state courts. United States v. Lopez-Alvarez, 9th Cir., 970 F.2d 583, 592, cert. denied, ___ U.S. ___, 113 S.Ct. 504, 121 L.Ed.2d 440 (1992); United States v. Johnson, 589 F.2d at 718; United States v. Wilson, 3rd Cir., 436 F.2d 122, 124, cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 654 (1971); Landsdown v. United States, 5th Cir., 348 F.2d 405 (1971); United States v. Abigando, 5th Cir., 439 F.2d 827, 833 (1971); Jacinth v. State, Alaska Supr., 593 P.2d 263, 266 (1979); State v. Yoshida, 44 Haw. 352, 354 P.2d 986, 990 (1960); People v. Brechon, 72 Ill.App.3d 178, 28 Ill.Dec. 459, 390 N.E.2d 626 (1979); State v. Parker, 315 N.C. 222, 337 S.E.2d 487, 495 (1985) (non-capital cases); State v. George, 109 N.H. 531, 257 A.2d 19 (1969); State v. Ervin, Tenn.Crim.App., 731 S.W.2d 70, 72 (1986); Schultz v. State, 82 Wis.2d 737, 264 N.W.2d 245, 253 (1978). This Court declined to adopt the "trustworthiness" approach in Johnson v. State, Del.Supr., 338 A.2d 124, 125-26 (1975).
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4 So.3d 584 (2007)
STEPHEN T. BOLDEN
v.
STATE.
No. CR-05-0285.
Court of Criminal Appeals of Alabama.
February 23, 2007.
Decision of the alabama court of criminal appeals without opinion. Affirmed.
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655 A.2d 338 (1995)
STATE of Maine
v.
Michael DUBE.
Supreme Judicial Court of Maine.
Submitted on Briefs January 23, 1995.
Decided March 1, 1995.
*339 Michael Cantara, Dist. Atty., Alfred, for the State.
Russell Goldsmith, York, for defendant.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
WATHEN, Chief Justice.
Michael Dube appeals from his conviction of endangering the welfare of a child, 17-A M.R.S.A. § 554(1)(C) (Supp.1993), entered in the District Court (Springvale, Janelle, J.) following Dube's conditional guilty plea. The defendant challenges the District Court's denial of his motion to suppress as well as the partial affirmance of that denial by the Superior Court (York County, Cole, J.). Dube alleges that both courts erred because all of the evidence in question was obtained as a result of an illegal search. We vacate the judgment of conviction.
On July 4, 1993, two officers of the Sanford Police Department responded to a call from the custodian of the apartment building in which defendant lived with his family. Defendant was not at home and the custodian needed to enter the apartment to stop sewage or water from leaking into the apartments below.[1] The custodian had his own key but asked the police officers to accompany him to verify that he was only dealing with the emergency. When they entered the kitchen, the officers were struck with an "incredible smell of urine and feces." There was a puddle of urine on the kitchen floor, and an open diaper containing human feces that appeared to have been walked through by a baby. The feces had been tracked throughout the apartment.
The officers watched the custodian work on the first floor toilet, and then followed him upstairs where they stood on the landing and watched while he worked in the second floor bathroom. The officers saw human feces tracked on the stairs and in the upstairs hall, and more dirty diapers on the floor. From where they stood on the landing, the officers could see into the three bedrooms. In the baby's bedroom and the children's bedroom, they saw clothes strewn on the floor covered with animal and human feces. There were at least 75-100 individual feces "right beside the baby's crib," and a similar number around the bunk beds and more in the hallway.
Officer Beaulieu called the Sanford Police Department to request that the Department of Human Services (DHS) send a caseworker to the apartment. He also radioed for another police unit to bring a camera. The officers asked the custodian to "stand by," and when he finished with the repairs the custodian waited on the sidewalk. About five minutes later, two officers arrived with a camera and Officer Beaulieu took pictures of parts of the apartment, and then went outside to wait with the custodian. When two DHS workers arrived, they were shown around the apartment by Officer Beaulieu. Thereafter, defendant and his family returned home, and he was charged with endangering the welfare of a child pursuant to 17-A M.R.S.A. § 554(1)(C) (Supp.1993).
After arraignment, defendant filed a motion to suppress all evidence obtained by the *340 officers. The District Court denied the motion. Defendant entered a conditional guilty plea, and appealed the denial. The Superior Court reversed the District Court "on all evidence seized after the Police Officer left with [the custodian] but denie[d] the motion to suppress to that point in time...." Defendant now appeals the Superior Court's partial denial of his motion.
When the Superior Court acts as an intermediate appellate court, we review the decision of the trial court directly. Noyes v. Noyes, 617 A.2d 1036, 1037 (Me. 1992). A ruling on a motion to suppress based on uncontroverted facts involves a legal conclusion that we review independently on appeal. State v. Hill, 606 A.2d 793, 795 (Me.1992); State v. Cloutier, 544 A.2d 1277, 1280 (1988).
Defendant argues that the initial entry into the apartment by the police officers was unlawful and a violation of the fourth amendment proscription against unreasonable searches. Defendant asserts that the officers knew that the custodian had no authority to consent to a search. Under these circumstances, defendant argues, the officers were required to contact defendant and obtain his consent before entering. We disagree.
Although defendant is correct that the custodian had no authority to consent to a search, his claim is irrelevant because it rests on the mistaken characterization of the officers' entry and observation as a search. We have held that when an officer is lawfully on the premises, observations made by means of his natural senses, from his natural vantage point, with no attempt to enhance his view, do not constitute a search for fourth amendment purposes. State v. Cloutier, 544 A.2d 1277, 1279-1280 (Me.1988)[2]. See also State v. Sapiel, 432 A.2d 1262, 1266 (Me.1981). We have also noted that a police officer has a "legitimate role as a public servant to assist those in distress and to maintain and foster public safety." State v. Pinkham, 565 A.2d 318, 319 (Me.1989). Local police officers frequently engage in "community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Id.
In this case, the custodian had a statutory right to enter the apartment in response to an emergency, and the court found that it was reasonable for the police to accompany him. During the time that the officers were on the premises performing a lawful police function, their observations, made with their natural senses, without acting to enhance their view, do not constitute a search for the purposes of the fourth amendment.
Defendant next argues that even if the officers' initial entry was lawful, their continued presence at some point became unlawful. We agree. Although the officers were lawfully on the premises during the time the custodian was dealing with the plumbing emergency, their continued presence after the repairs were completed was unlawful unless justified by one of the exceptions to the warrant requirement. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The State concedes that once the repairs were complete, the officers' presence inside the apartment is justifiable only if protecting the children from being returned to squalid conditions can be considered an exigent circumstance. Exigent circumstances exist when there is a compelling need to conduct a search and insufficient time in which to secure a warrant. See State v. Smith, 593 A.2d 210, 212 (Me.1991). The facts of this case do not support a finding of exigent circumstances. Because the children were not present in the apartment, there was no immediate threat to their safety.
The District Court held that the photographs "only recorded what was in plain sight." Although that is undoubtedly correct, the photographs were taken after the custodian had finished his repairs. On appeal, *341 the Superior Court suppressed "all evidence seized after the Police Officer left with [the custodian]." The line drawn by the Superior Court ignores the fact that once the repairs were complete, the justification for the presence of the police in the apartment ceased. The record suggests that the photographs were taken after the repairs had been completed. If this is true, those photographs, along with any other evidence gathered after the repairs were completed, must be suppressed. Any evidence gathered before the repairs were completed is not subject to exclusion. We are required to vacate the judgment and, on remand, the defendant will be entitled to consider withdrawing his conditional guilty plea pursuant to M.R.Crim.P. 11(a)(2).
The entry is:
Judgment of conviction vacated. Remanded for further proceedings consistent with the opinion herein.
All concurring.
NOTES
[1] The custodian's entry is authorized by a statute which provides in pertinent part: "Except in the case of an emergency or if it is impractical to do so, the landlord shall give the tenant reasonable notice of his intent to enter and shall enter only at reasonable times. Twenty-four hours is presumed to be reasonable notice in the absence of evidence to the contrary." 14 M.R.S.A. § 6025(2) (Supp.1993).
[2] In Cloutier, we refer in a footnote to the "inadvertency" requirement of the plain view doctrine. Cloutier, 544 A.2d at 1281 n. 4. The U.S. Supreme Court subsequently held that inadvertency is not a requirement for a plain view seizure. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). This ruling, however, does not invalidate the Cloutier holding because inadvertency was not an issue in that case.
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440 Pa. Superior Ct. 372 (1995)
655 A.2d 997
PNC BANK, National Association Successor by Merger to PNC Bank, Northeast Pa., Formerly Known as Northeastern Bank of Pennsylvania, Appellee
v.
Robert C. BOLUS, A/K/A Robert Bolus, Appellant.
Superior Court of Pennsylvania.
Argued December 14, 1994.
Filed January 25, 1995.
Reargument Denied March 21, 1995.
*375 Debra Bolus-Kaufmann, Philadelphia, for appellant.
Steven E. Ostrow, Philadelphia, for appellee.
Before McEWEN, OLSZEWSKI and JOHNSON, JJ.
OLSZEWSKI, Judge:
In 1989, PNC Bank loaned Robert Bolus $780,000. The loan was secured by a mortgage and a lease assignment, and was part of a larger transaction which restructured Bolus's existing debt. The only aspect of the loan which concerns this appeal, however, is the promissory note which evidenced it, and which permitted PNC to confess judgment against Bolus in the event of a default. The pertinent parts of the note read:
PROMISSORY NOTE
July 14, 1989
$780,000.00
FOR VALUE RECEIVED, and intending to be legally bound, ROBERT C. BOLUS, a/k/a ROBERT BOLUS, of 1530 Birch Street, Scranton, Pennsylvania 18505 (the "Maker") promises to pay to the Order of NORTHEASTERN BANK OF PENNSYLVANIA (the "Bank") at its Central City, Scranton, Office, the sum of SEVEN HUNDRED EIGHTY THOUSAND DOLLARS ($780,000.00) in one hundred eighty (180) consecutive monthly installments, as follows:
* * * * * *
[several paragraphs follow concerning payment and the security agreement]
* * * * * *
The terms of the Loan Agreement shall be deemed incorporated herein; provided, however, that no such inclusion shall in any manner be deemed to affect Maker's obligation hereunder or operate to limit the negotiability hereof.
*376 In the event of a default . . . Maker hereby empowers . . . any attorney . . . to confess judgment . . . for the above sum, together with costs of suit and a reasonable attorney's commission, but not greater than ten percent (10%), for collection, with release of all errors.
* * * * * *
R.R. at 7-9 (emphasis in bold added).[1]
Bolus defaulted on the loan in 1993. After he was notified of the default and failed to cure it, the Bank decided to confess judgment against him. Pursuant to Pa.R.C.P. 2952, the Bank's attorney entered his appearance on behalf of Bolus and asked the prothonotary to enter judgment against Bolus in the total amount of $803,341.54, as follows:
Principal balance $706,477.74
Interest $ 10,628.37
Late charges $ 90.00
Real estate taxes $ 13,553.58
Liability insurance $ 1,889.58
Attorney's commission $ 70,647.77
Costs of suit $ 54.50
Total: $803,341.54
R.R. at 5-6.
Bolus brought a petition to strike off or open the confessed judgment. He argued that the amount confessed included charges clearly outside the warrant of confession in his promissory note, so the entire confessed judgment is void and should be struck off.[2] The trial court denied Bolus's petition in its order of 3/1/94.[3] Bolus now appeals.
A petition to strike a judgment operates as a demurrer to the record, and must be granted whenever some fatal *377 defect appears on the face of the record. Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 599, 511 A.2d 761, 762 (1986). Bolus has pointed to a profound defect: PNC Bank confessed judgment for several items which the confession clause in the promissory note never authorized.
The cognovit clause quite plainly states that upon default, PNC may confess judgment for "the above sum." There is only one possible referent for the term "the above sum" namely, the sum of $780,000 which the Bank lent to Bolus and which is prominently displayed at the top of the note. R.R. at 7-9. The cognovit clause does not authorize the Bank to confess judgment for any other claim outside the note which the Bank might have against Bolus, such as delinquent taxes or insurance premiums.
The Bank argues that the paragraph immediately preceding the cognovit clause incorporates the entire Loan Agreement by reference, and therefore any amount owed under this other agreement could be included in a judgment by confession on the note. This argument fails for three reasons.
First, as already mentioned, the cognovit clause says the Bank may confess judgment for "the above sum," not for any amount owing under the above referenced Loan Agreement. There is simply no other "sum" mentioned anywhere else in the note. We cannot conceive how the note could be interpreted otherwise.
Second, the paragraph referencing the Loan Agreement states that the Loan Agreement shall not be incorporated if such inclusion could "affect the Maker's obligation hereunder." Doubtless, the Bank wished to insure that the referenced Loan Agreement would never operate to lower Bolus's basic obligation to repay the $780,000 loan. But the phrase "affect the Maker's obligation" can apply to raising the obligation as well as lowering it. By including the taxes and insurance debts from the Loan Agreement, the Bank increased Bolus's obligation beyond what is stated in the note. Hence, the Bank's confession argument clearly affects Bolus's *378 obligation under the note, so we must conclude that the Loan Agreement is not incorporated. The Bank's incorporation argument fails under its own terms.
Third, the same paragraph states that the Loan Agreement shall not be incorporated if such incorporation would limit the note's negotiability. If the amount which Bolus owed under the note were determined by the Loan Agreement, then the instrument would not be negotiable. See 13 Pa.C.S.A. § 3104 (negotiable instruments must be for a fixed amount) and § 3106 (stating the obligations regarding the promise to pay in another writing makes the note conditional, and nonnegotiable). The Bank's incorporation argument is again defeated by its own terms.
Nor has the trial court offered any contrary interpretation. The trial court's order merely stated that it denied Bolus's motion to strike because the Bank complied with the judgment by confession procedures set forth in PennWest Farm Credit, ACA v. Hare, 410 Pa.Super. 422, 600 A.2d 213 (1991). PennWest addresses special laws applicable to residential mortgages of less than $50,000. Bolus's property is a commercial gas station and truck stop. PennWest is inapposite, and nowhere addresses Bolus's straightforward claim that a confessed judgment must be strictly limited to the amounts or items expressly stated in the note, or it will be void.
A case which does address this precise point is Langman v. Metropolitan Acceptance Corp., 318 Pa.Super. 381, 465 A.2d 5 (1983). In Langman, this Court reiterated well-established principles of law:
Because a warrant of attorney authorizing confession of judgment can be an oppressive weapon, a judgment entered pursuant thereto can be accomplished only by strict adherence to the provisions of the warrant. Any doubt as to the validity of such a judgment must be resolved against the party entering the judgment.
* * * * * *
In numerous decisions, [the courts] have ruled that if the confessed judgment includes an item not authorized in the *379 warrant, the judgment is void in its entirety and must be stricken.
Id. at 384, 386, 465 A.2d at 7, 8 (emphasis added, numerous citations omitted). Langman further notes that "[s]uch a defect goes to the very heart of the judgment and cannot be ignored or overlooked under the aegis of the `waiver of error' clause." Id. at 386, 465 A.2d at 8. See also Dollar Bank v. Northwood Cheese Co., 431 Pa.Super. 541, 551-52, 637 A.2d 309, 314 (1994).
The Bank wanted the convenience of a negotiable note with a confession clause, but without the constraints which negotiability and confession of judgment impose. Confession of judgment is a powerful tool, because it effectively prevents the debtor from having his day in court. Such power must be exercised fairly and with exacting precision. The Bank may not use this one confession clause as a convenient method to collect any and every claim it has against Bolus. For "sums" not mentioned in the note, the Bank must use other, less oppressive debt collection procedures.
We acknowledge that Bolus may well be in default, and the Bank may be fully entitled to confess judgment against him. We emphasize that our present holding striking the judgment has no prejudicial effect; the Bank may go back to the prothonotary and properly confess judgment for the amount stated in the note.
We also observe that the trial court exercised its inherent equitable power to reduce the attorney's fee charge by about $60,000. See note 3, supra. While this decision is mooted by our present holding, which strikes off the judgment in its entirety, we express our approval of this aspect of the trial court's decision. To charge more than $70,000 as an attorney's fee for what in most cases amounts to filing a single document with the prothonotary is blatantly unreasonable.[4]*380 We do not specifically endorse the trial court's chosen amount as appropriate, nor offer guidelines for this or future cases, since the issue is not directly before us. We would merely encourage trial courts to monitor the amounts charged in such circumstances, and to reduce clearly excessive fees. See Northwood Cheese, supra at 551-52, 637 A.2d at 314 (court may modify amount of attorney's fees if excessive).
The trial court's order denying Bolus's motion to strike is reversed, and the judgment is stricken. Jurisdiction is relinquished.
NOTES
[1] PNC Bank is the Northeastern Bank's successor-in-interest to this loan.
[2] Specifically, the debts concerning taxes and insurance were not mentioned in the note.
[3] The trial court did not file a Rule 1925 opinion, nor did it ask Bolus for a statement of matters complained of on appeal. See Pa.R.A.P. 1925. Thus, this short order contains the trial court's only explanation for its decision. The order also denied Bolus's petition to open the judgment, but the court did exercise its equitable powers to reduce the excessive attorney's commission from $70,647.77 to about $10,000. Order of 3/1/94.
[4] The note authorized a reasonable attorney's commission, not to exceed ten percent of the amount of the loan in default. R.R. at 9. Thus the $70,647.77 fee entered is the maximum allowable under the note, but it is not necessarily a reasonable amount.
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544 S.W.2d 448 (1976)
L. D. MOORE, Appellant,
v.
Walter H. ALLEN et al., Executors and the First United Methodist Church of Marlin, Texas, Appellees.
No. 5614.
Court of Civil Appeals of Texas, Waco.
October 21, 1976.
Rehearing Granted November 18, 1976.
*449 Robert G. Carter, Marlin, for appellant.
John B. Henderson, Jr., Cameron, Jack Welch, Marlin, Wiley Stem, Danny C. Wash, Waco, for appellees.
OPINION
JAMES, Justice.
This is a suit for declaratory judgment to construe three holographic codicils. The primary question before us is whether the latest codicil, that dated October 19, 1974, is mandatory or precatory. The trial court held such codicil to be precatory. We hold the codicil to be mandatory and testamentary in nature, and therefore reverse and render the trial court's judgment in this regard.
The plaintiffs in this suit were Walter H. Allen and Mary Jane Reagan, Independent Executors of the Estate of Lalla Branson, Deceased. The defendants were L. D. Moore (Appellant herein), Ruby Henson and seven other individuals (who were devisees and legatees in the will and codicils of the testatrix, and whose rights are not in question in this appeal) and The First United Methodist Church of Marlin, Texas (hereinafter referred to as "the Church"). The above-named Executors and the Church are Appellees herein.
Lalla Branson, the deceased testatrix, died on April 5, 1975, and thereafter, to wit, on May 6, 1975, her will and three holographic codicils were duly probated in the County Court of Falls County, Texas. The record does not reflect that any appeal was taken from said order of probate.
The testatrix had never married, had lived most if not all of her life in Marlin, Texas, was advanced in years and probably in her eighties at the time of her death, and had no family that was known of. She was a very active member of the First United Methodist Church of Marlin, Texas, and was for a long period of time until her death treasurer and secretary of the Official Board as well as organist at said Church.
Her will was a typewritten instrument dated January 4, 1973, shown to be signed by her and attested by two witnesses. In said instrument after appointing her executor and executrix, in paragraph 2 she used the following language:
"2. To the First United Methodist Church of Marlin, Texas, I give and bequeath my home, located at the corner of Houghton and Carter Streets and being a part of Lot No. 15 of the Curry Addition to the town of Marlin." Thereafter followed a number of special bequests not necessary to be particularized herein, and a disposition of the rest and residue of her estate.
As stated, after the date of her will hereinabove described, the testatrix made three holographic codicils. The codicil dated "August 1974" began as follows: "What I want done with several things in my home. To Ruby Hynson: Everything in Mabel's room (n. east bedroom) except the clothes in the closet. Give them to someone who needs them. Also the marble top coffee table in the library downstairs southeast room. Also the Seth Thomas clock in the back room downstairs on mantel."
Thereafter followed this language: "L. D. Moore wants a chance to buy the home. Give him first chance. I am leaving him the clock at the foot of stairs." Then follows a number of specific bequests to various individuals of pictures, furniture, silver, china, and other household and personal effects. Near the end of this codicil she named eleven men as "pallbearers", the second man named being "L. D. Moore."
Her codicil bearing date of August 28, 1974, makes a number of specific bequests to various individuals of furniture and household items and personal effects which have no bearing upon the controversy at hand.
The third and last codicil bearing date of October 19, 1974, reads as follows:
"I have willed my home to First Methodist Church, but I want them to let L. D. Moore buy it for $10,000.00. The various things in my house that have not been assigned to a special person will go with the house.
*450 "The house is 62 years old and at the present time needs lots of repairs, so we decided on the $10,000.00 price.
"Lalla Branson October 19, 1974."
Trial was to the court without a jury after which the trial court held that the codicils of "August 1974" and of August 28, 1974 were testamentary in nature whereas the codicil of October 19, 1974 was precatory only and held to be of no legal effect. The essence of said judgment was to give testamentary effect to the specific bequests set out by the testatrix in the first two codicils and to give no legal effect to the codicil of October 19, 1974, wherein the testatrix said she had willed her home to the Church but "wanted them to let L. D. Moore buy it for $10,000.00." The trial court's judgment provided "the only obligation of the defendant church is to give L. D. Moore the first chance to purchase same at a fair value of same as determined by the defendant church, as authorized by the codicil dated August 1974."
Appellant L. D. Moore appeals from said judgment asserting error of the trial court in holding that the codicil of October 19, 1974 is precatory. Appellant contends that said codicil was mandatory and testamentary in nature and that he is legally entitled to buy the testatrix's home place from the Church for $10,000.00. We sustain Appellant's contention and hereby reverse and render the trial court's judgment so as to provide that Appellant L. D. Moore is entitled to purchase the testatrix's home place from the Church upon payment to said Church the amount of $10,000.00.
One of the cardinal rules in the construction of a will (or in this case a codicil) is to ascertain and declare the intent of the testator, and, if legal, to enforce that intent. Bergin v. Bergin (1958) 159 Tex. 83, 315 S.W.2d 943. When such intention can legally be ascertained with reasonable certainty it becomes the positive duty of the courts to effectuate and enforce the same, if it is not unlawful to do so. Welch v. Rawls (Waco, Tex.Civ.App., 1945) 186 S.W.2d 103, error refused, want of merit; 61 Tex.Jur.2d "Wills", part. 146, p. 268.
In the case at bar, the words used by the testatrix that "I Want them (the Church) to let L. D. Moore buy it for $10,000.00" is clear and unambiguous, and requires the application of no rules of construction in order to ascertain the intent of the testatrix. As this court said in Welch v. Rawls, supra: "In arriving at the intention of the testator, it is also the duty of the courts to look alone to the language actually employed in the will if that is legally possible or practicable." The term "I want" or "wanted" is often construed as mandatory when used in a will (or codicil) when it appears from the context or from the entire document that they are the expression of the testator's intention in making disposition of his property. Bergin v. Bergin (1958) 159 Tex. 83, 315 S.W.2d 943; Welch v. Rawls (Waco, Tex.Civ.App., 1945) 186 S.W.2d 103, err. refused want of merit; 61 Tex.Jur.2d "Wills," pars. 156, 157, pp. 282 et seq.
Lalla Branson had no known family or relatives at times material to this controversy. In times past she had a brother and sister who died many years ago. L. D. Moore was a member of Appellee Church, had lived in Marlin, Texas, about forty years and was at the time of trial and had been sales and service manager for a hardware firm in Marlin for thirty years. He and the testatrix were friends, by virtue of being fellow members in the Church and in addition thereto, Moore "kept her appliances going for years." Moore testified: "And a lot of times she would call me and I would be tied up maybe and I would go by after I got off and make the call and get her appliance going, whatever it might have been." On several of such occasions the testatrix talked to Moore about the house. Moore testified that she would always refer to it as "your house." Moore said, "and I would say, `well, just what do you mean by my house'? She says, `well, I have got it fixed where you have the first chance to buy it.' I said, `well that's great and I appreciate it but whatever you put down I will have to borrow the money to buy it.' And that's about the extent of that."
*451 After the testatrix had prepared the codicil of October 19, 1974, she put it in an envelope which had her return address in the upper left hand corner thereof, and wrote "L. D. Moore" on the front of the envelope. On a Sunday morning after church services, she walked over to Moore in church and handed to Moore this envelope containing the codicil and said, "Here, L. D. I want you to have this." After this occasion, the codicil remained in the possession of Moore or his attorney until after the testatrix's death, when Moore turned it over to the lawyer who probated the will and codicils.
Where, as here, there are three codicils to be taken into consideration in a case requiring will construction, and the codicil of October 19, 1974, in question is the last one made, it is to be presumed that the testatrix has reexamined the testamentary disposition in the original will and the two previous codicils before executing the last codicil; the will and the codicils are to be regarded as one instrument speaking from the date of the last codicil. And it naturally follows that insofar as the last codicil makes changes deviating from previous testamentary dispositions, the provisions of the last codicil will control. Boyd v. Frost National Bank (1946) 145 Tex. 206, 196 S.W.2d 497, 508; Wattenburger v. Morris (Fort Worth, Tex.Civ.App., 1968) 436 S.W.2d 234, NRE.
Appellee Church takes the position that the codicil of October 19, 1974 is merely expressive of a desire or wish of the testatrix and is therefore merely precatory in nature and should be given no testamentary effect. We do not agree with this contention. From the language used by the testatrix as contained within the four corners of the codicil and as further enlightened and explained by the surrounding circumstances, hereinabove stated, we believe it is beyond question that the testatrix intended the codicil of October 19, 1974, to be mandatory and testamentary in nature. We therefore hold that the trial court erred in holding the codicil in question to be precatory only, and reverse and render the trial court's judgment so as to provide that Appellant L. D. Moore is legally entitled to purchase the testatrix's home place from the Church by his payment to the Church of $10,000.00.
REVERSED AND RENDERED.
ORDER GRANTING MOTION FOR REHEARING
Appellee, the First Methodist Church of Marlin, Texas, bases its motion for rehearing upon the ground of nonjoinder of the Attorney General of Texas, asserting that the Attorney General is a necessary and indispensable party to this cause under the provisions of Article 4412a, Vernon's Texas Civil Statutes. Appellee contends that since the Attorney General was never served with process as prescribed by Section 3 of Article 4412a, nor in any other manner joined as a party herein, that the judgment of the trial court is void and unenforceable, and should be set aside.
Moreover, the Attorney General has filed a motion in this court reciting that he has not been joined as a party either in the trial court or on appeal, and requests that the judgment of the trial court be vacated and set aside.
We sustain and grant both motions. This was and is a suit for declaratory judgment to construe the provisions of testamentary instruments creating and affecting a "charitable trust", as that term is defined in Art. 4412a, and as such falls squarely within the provisions of said Article. Section 2 of the Article makes the Attorney General of Texas a necessary party to an action to construe any instrument, testamentary or otherwise, affecting a charitable trust. Section 4 declares that a judgment rendered in a suit of this nature is void and unenforceable "without service or process upon the Attorney General", and further provides that "any such judgment shall be set aside upon motion of the Attorney General filed at any time thereafter."
In the case at bar, failure to join the Attorney General is fundamental error and thereby renders void the trial court's judgment. See Akin Foundation v. Trustees for *452 the Preston Road Church of Christ (Texarkana, Tex.Civ.App., 1963) 367 S.W.2d 351, no writ; In Re Estate of Bourland v. Hanes (Corpus Christi, Tex.Civ.App., 1975) 526 S.W.2d 156, NRE.
Under these circumstances, this court has jurisdiction to declare the invalidity of the trial court's judgment and to set it aside. Williams v. Steele (1908) 101 Tex. 382, 108 S.W. 155, 157; Henn v. City of Amarillo (1957) 157 Tex. 129, 301 S.W.2d 71, 73.
Moreover, as we understand the pronouncements of our Supreme Court, the proper disposition of this matter in this state of the record is to reverse and remand the cause to the trial court with direction that the original plaintiffs have a reasonable time to effect the joinder of the Attorney General of Texas as a party to the suit. See Adams v. Bankers Life Co. (Comm.App. 1931) 36 S.W.2d 182, opinion approved; Sharpe v. Landowners Oil Assn. (1936) 127 Tex. 147, 92 S.W.2d 435, opinion adopted; Mason v. Mason (Tex.1963) 366 S.W.2d 552. In this connection also see Akin Foundation v. Trustees for Preston Road Church of Christ (Texarkana, Tex.Civ.App., 1963) 367 S.W.2d 351, no writ. It is so ordered.
REVERSED AND REMANDED.
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4 So.3d 588 (2007)
GREG BRADLEY
v.
STATE.
No. CR-05-2153.
Court of Criminal Appeals of Alabama.
February 23, 2007.
Decision of the alabama court of criminal appeals without opinion. Affirmed.
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544 S.W.2d 692 (1976)
L. J. HARRISON, Appellant,
v.
SOUTHLAND CORPORATION et al., Appellees.
No. 19022.
Court of Civil Appeals of Texas, Dallas.
November 4, 1976.
*693 Jack C. Morgan, Morgan, Shumpert, Huff, Mosley & Co., Kaufman, for appellant.
Stephen F. Fink, Thompson, Knight, Simmons & Bullion, Dallas, for appellees.
GUITTARD, Justice.
In this suit against the owner of a grocery store and its employee for false imprisonment, the trial court rendered summary judgment for defendants. The action arises from plaintiff's arrest by police officers. The question for our decision is whether evidence of an accusation by the employee, Mrs. Perry, that plaintiff had committed a robbery supports an inference that she requested or directed the arrest. We hold that no such inference can be drawn. Consequently, we affirm.
The material facts are stipulated for the purpose of the motion for summary judgment as follows:
The parties would stipulate and agree that the actions which resulted in the arrest and detention of the Plaintiff occurred on September 20, 1970. That the Plaintiff was subsequently acquitted and released from custody on July 11, 1973. That the Dallas Police Department arrested the Plaintiff based upon the accusations of Defendant, Mrs. Perry, but that she played no active role in the arrest and detention of Plaintiff. Neither Defendant Southland Corporation nor Defendant Perry at any time themselves physically restrained, detained, imprisoned or arrested Plaintiff. The Dallas Police Department did, however, arrest Plaintiff on September 20, 1970, without a warrant based upon the accusations and information filed by Mrs. Perry, who was an employee of Southland Corporation at the time and was acting within the course and scope of her employment.
On this appeal, plaintiff relies on the rule that where more than one person participates in an unauthorized arrest, each is liable for the acts of all, as held in Wolf v. Perryman, 82 Tex. 112, 17 S.W. 772, 775 (1891), and McDonald v. Henderson, 250 S.W. 463 (Tex.Civ.App.Amarillo 1923, no writ). Plaintiff concedes that liability of a store owner for an improper arrest by a police officer depends upon whether the defendant's employee requested or directed the arrest, and that merely to report an alleged offense and identify the plaintiff as the offender does not establish liability for false imprisonment. Authorities so holding include Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063 (1898), and J. C. Penney Co. v. Reynolds, 329 S.W.2d 104 (Tex.Civ.App.El Paso 1959, writ ref'd n. r. e.). Plaintiff *694 argues, however, that the stipulation raises a fact issue because a jury would be permitted to infer that Mrs. Perry requested or directed the arrest from evidence that she accused and identified plaintiff as having committed the alleged robbery.
We conclude that no fact issue is raised. The stipulation states that the police "arrested the Plaintiff upon the accusations of Defendant Mrs. Perry, but that she played no active role in the arrest and detention of Plaintiff." An inference from these facts that Mrs. Perry requested or directed the arrest would be only a "surmise or suspicion," and, consequently, insufficient to raise a fact issue as to whether the defendant requested or directed the arrest. Joske v. Irvine, supra. According to the stipulation, Mrs. Perry did nothing more than to exercise a citizen's privilege to report an alleged crime and identify the supposed offender. If the police acted without legal authority, neither Mrs. Perry nor her employer can be held responsible. Central Motor Co. v. Roberson, 154 S.W.2d 180, 183 (Tex.Civ.App.Fort Worth 1941), affirmed sub nom., Burton v. Roberson, 139 Tex. 562, 164 S.W.2d 524 (1942). If the accusation was made with malice and without probable cause, and plaintiff was finally acquitted of the charge, he might have had ground for an action for malicious prosecution, but that question is not before us. We hold that the facts stipulated establish as a matter of law that plaintiff is not entitled to recover in this action for false imprisonment.
Affirmed.
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544 S.W.2d 351 (1976)
DALLAS GLASS OF HENDERSONVILLE, INC. and Trans-Units, Inc., Petitioners-Plaintiffs,
v.
BITUMINOUS FIRE & MARINE INSURANCE COMPANY, Respondent-Defendant.
Supreme Court of Tennessee.
October 11, 1976.
Rehearing Denied November 15, 1976.
F. Dulin Kelley, Hendersonville, for petitioners-plaintiffs.
Ed R. Davies, Nashville, for respondent-defendant.
*352 OPINION
HARBISON, Justice.
This case involves a question of coverage under the provisions of a cargo insurance policy issued to the petitioners by respondent.
Petitioner Trans-Units, Inc. manufactures aluminum and glass prefabricated motel fronts. Petitioner Dallas Glass of Hendersonville, Inc. supplies trailers used to transport the cargoes shipped by Trans-Units, Inc. Petitioners purchased cargo insurance from respondent insurance company through an insurance agency in Hendersonville, Tennessee, known as Newman, Hayes and Hogin, Inc.
Among other policies of insurance purchased through this agency, petitioners were issued a multi-peril insurance policy from respondent. By endorsement, this policy provided:
"This policy covers on lawful goods and merchandise consisting of ... the property of the Insured or sold by them and in course of delivery ... within a radius of 500 miles of Hendersonville, Tennessee." (Emphasis supplied).
While the policy was in effect, a tractor-trailer unit, transporting cargo consigned to a Holiday Inn in Bangor, Maine, was involved in an accident at the site of an overpass in the vicinity of Wells, Maine, some twelve hundred miles from Hendersonville. Respondent denied liability under the policy, contending that there was contact only between the cargo and the structure of the overpass, with no part of the tractor-trailer unit being involved. This presented a question of coverage, since the policy indemnified for loss "caused by collision of the vehicle". In addition, respondent relied upon the mileage limitation contained in the endorsement quoted above.
The trial court allowed recovery for the cargo loss, in the amount of $9,900.00. The Court of Appeals reversed and dismissed the suit. That court pretermitted the question of whether there was a loss caused by "collision" within the meaning of the policy. It held that the mileage limitation "is a part of the insuring portion of the insurance policy," and that the coverage of the policy could not be changed through application of principles of waiver or estoppel.
Petitioners have insisted throughout the litigation that they desired to purchase complete coverage on their cargoes while in transit and that the mileage limitation had never been called to their attention. The insured had for a period of some four years made monthly reports to the insurance carrier, through the agency, showing the destination and value of each cargo shipped. Over ninety percent of the shipments exceeded the five hundred mile policy limitation. Representatives of the insured testified that full cargo coverage had been requested, and that in order to obtain it the insured went on a "monthly reporting" basis, with respect to its cargo coverage. Under this procedure, the insured paid an initial estimated premium, but submitted monthly reports concerning its shipments, these reports usually being filled out by a member of the insurance agency itself. The insured was subject to annual audit and adjustment of its premium. A representative of the petitioners testified as follows:
"Q. What do you mean by liability exposure and cargo coverage?
"A. Cargo coverage on a reporting basis is based on your exposure by amount of dollars, by amount of miles you travel.
.....
"Q. Is that your understanding?
"A. Yes, sir, that was my understanding, because our exposure was much greater from here to New York than it would be from here to Nashville.
"THE COURT: On liability?
"THE WITNESS: On liability, and the exposure of the cargo insurance. This is why it went to a reporting type basis.
"Q. Is this the reason an audit was made every year?
"A. Yes, sir.
"Q. Did you pay additional premium or did you receive reduced premiums?
*353 "A. We received additional premiums or received credit, depending on the exposure for that period of time."
Two representatives of the insurance agency were called as witnesses by the insurer. They testified that they had full knowledge of the fact that the insured's shipments were exceeding the five hundred mile limitation. Both of them testified, under examination by counsel for the insurance carrier, that they did not agree with the respondent's reliance on the policy limitation in this case. They based their conclusions, in part at least, upon the monthly reporting system which had been instituted, showing the value and destination of each cargo which was insured.
The representatives of the insurance agency testified that they felt that the insurance carrier had full knowledge of the operations of the insured from these monthly reports and also from inspections made of the insured's premises and vehicles by engineering personnel of the insurance carrier. One of them testified that the company required monthly reports in order that it might set the premiums. In addition, he stated that this information enabled the company to determine whether "they don't want the coverage any more... ."
There is no testimony indicating that any representative of the insurance carrier had called to the attention of the insured the mileage limitation over the period of years during which monthly reports had been filed. An underwriter from the Nashville office of the insurance carrier testified that the company only charged the insured premiums based upon the five hundred mile limitation. She testified that the company did write coverage for distances up to fifteen hundred miles, but at substantially increased rates.
The Court of Appeals held that while principles of waiver or estoppel might be invoked by an insured to prevent an insurance carrier from relying upon exclusionary provisions of an insurance policy, those principles were not available to prevent reliance by the carrier upon the actual insuring clauses of the insurance contract. The Court cited and relied principally upon the cases of E.K. Hardison Seed Co. v. Continental Cas. Co., 56 Tenn. App. 644, 410 S.W.2d 729 (1966), and Bituminous Fire & Marine Ins. Co. v. Izzy Rosen's Inc., 493 F.2d 257 (6th Cir.1974).
It is indeed a recognized principle of insurance law that a contract of insurance cannot be created by waiver or estoppel. However, this general statement, although well supported by case law, should be considered in light of the facts to which it has been applied.
In the case of E.K. Hardison Seed Co. v. Continental Cas. Co., 56 Tenn. App. 644, 410 S.W.2d 729 (1966), the insured had a policy of insurance against liability for damages "caused by accident". The insured was sued for breach of warranty based upon a claim of defective merchandise. There was testimony that the insurance agent had told the insured that it had "full coverage" for its business operations, but all parties agreed that there had never been any discussion between the insured and the agent with respect to contractual coverage, or any kind of liability insurance other than that arising from accident. The Court of Appeals affirmed the Chancellor in declining to reform the contract to afford such coverage, because the subject had never been discussed by the parties. Also upon these facts the court held that warranty coverage could not be created or supplied by waiver or estoppel.
The principle that a new contract, or coverage of a different kind of risk, cannot be created by waiver or estoppel has reference to the nature of the coverage afforded, not merely to limitations or conditions pertaining to a risk already covered by the policy. In the course of its opinion in the Hardison Seed Co. case, supra, the Court quoted with approval of the following statement from 45 C.J.S. Insurance, § 674:
"As a general rule, the doctrines of waiver or estoppel can have a field of operation only when the subject matter is within the terms of the contract, and they cannot operate radically to change *354 the terms of the policy so as to cover additional subject matter."
It was this same principle which was applied by the Court of Appeals for the Sixth Circuit in the case of Bituminous Fire & Marine Ins. Co. v. Izzy Rosen's, Inc., 493 F.2d 257 (6th Cir.1974). In that case the insured had a policy covering liability for bodily injuries to persons. It sought, by estoppel, to create coverage for slander, false arrest and similar intentional torts.
This is not the situation in the present case. Here the insured clearly had cargo collision coverage. The record shows that the insured and the agent of the insurer intended that the insured would be furnished full coverage upon its cargoes while in transit. The policy which was issued and delivered contained a five hundred mile limitation upon coverage, but, for a period literally of years prior to the incident in question, the insured reported monthly to the insurer both the values of its cargoes and the destination of each shipment. These shipments were to points in many different states of the United States, and nearly all of them were to destinations well beyond the five hundred mile radius. There is no question but that the agent knew of these shipments, and, for that matter, no question but that the insurance company also knew of them. It received the monthly reports and made annual premium adjustments. Its safety engineers inspected the vehicles upon which the cargoes were transported. It seems implausible that the company could consider that the insured intended to procure coverage upon its cargoes within a five hundred mile radius, but that it expected to be self-insured beyond that point. The testimony of both the insured and the agents is clear that the insured desired full coverage upon its cargoes, and that it changed to a monthly reporting system, with an annual premium audit and adjustment, upon the advice and recommendation of the insurance agents.
Under these circumstances, we do not conceive that any new contract of insurance is being "created" by application of principles of waiver or estoppel. Indeed, the case seems to us to turn upon the principle of waiver, which has long been defined in the Tennessee cases as the voluntary relinquishment of a known right.[1] There is no question but that the agents considered the cargoes covered beyond the five hundred mile radius and that the insured expected such coverage. The agency conferred regularly with the insured and continually attempted to furnish insurance coverage suited to the needs of a changing and expanding business operation.
Had the insured brought this action for reformation of the policy, by a suit in equity, rather than as an action at law upon the contract, a chancery court in all probability would have reformed the policy to conform to the clear intentions of the parties, permitting coverage up to fifteen hundred miles (the maximum written by the insurance carrier) and requiring the insured to pay an additional premium accordingly.
Since reformation of the policy was not sought below, it would be inappropriate for us to decree that relief here. In our opinion, however, there was a waiver of the limitation upon coverage by the insurer, both through the actions of its agents and through the knowledge which it itself received and acted upon. Under these circumstances, we hold that the insured is entitled to recover the amount of its loss, insofar as the mileage limitation is concerned.
Support can be found for the judgment of the trial court in the case of Miller v. Monticello Ins. Co., 50 Tenn. App. 363, 361 S.W.2d 496 (1961). In that case certain welding equipment was insured while located on premises described in the policy. The equipment was used at different locations from the insured premises, with the knowledge of the agent, and was destroyed several miles therefrom. The Court of Appeals affirmed a recovery against the insurance carrier upon principles of waiver.
To the same effect is the case of Shelby Mutual Ins. Co. v. Wilson, 53 Tenn. App. 428, *355 383 S.W.2d 791 (1964). In that case the insured had a homeowner's policy, covering unscheduled personal property to its full value while on the premises described in the policy. The policy also covered unscheduled personal property while away from the premises, subject, however, to a limitation of ten percent of the "on premises" coverage.
In that case the insured moved from Greeneville, Tennessee to Rogersville, Tennessee in September, 1962, and, in December, 1962 the insured again moved from within the corporate limits of Rogersville to another location just outside the city limits. These changes in location were known to the insurance agent. The personal property of the insured was destroyed by fire while at the last location. The Court of Appeals affirmed a judgment against the insurance carrier for the full value of the property, finding evidence to support the judgment of the trial court that the agent had knowledge of the location of the property, that this knowledge was imputed to the insurance carrier, and that there was a waiver of the limitation on the location of the property.
Reference also should be made to the case of Smith v. Continental Ins. Co., 63 Tenn. App. 48, 469 S.W.2d 138 (1971), where the insurer was held liable for the full loss claimed despite incomplete data reported by the insured and the agent on monthly forms as to inventory values. The agent was held to be the insurer's agent under T.C.A. § 56-705, and it was bound by her actions and agreements.
We do not find that these cases conflict with the Hardison Seed Co. case and other cases holding that insurance coverage cannot be created by waiver or estoppel. If the insured in the present case had cargo insurance limited to some particular peril, it is doubtful that the insurance could be changed through principles of waiver or estoppel to protect against some entirely different risk. We do not have in this case, however, a question of a change in the nature of the coverage, but simply a condition or limitation upon a risk which was actually underwritten, and such conditions and limitations are subject to waiver by authorized representatives of an insurance carrier.
In the case of Bailey v. Life & Casualty Ins. Co. of Tenn., 35 Tenn. App. 574, 250 S.W.2d 99 (1951), it was said:
"Any contractual provision in a policy of insurance, made for the benefit of the insurer, not mandatory under a statute, may be waived by an officer or agent of insurer who has actual or apparent authority so to do. Furthermore, the insurer by express words or by acts or by a course of conduct may ratify the acts of its unauthorized agents relating to such provisions, or be estopped to rely upon them... ." 35 Tenn. App. at 582-583, 250 S.W.2d at 102.
As previously indicated, the insurance carrier did contend in the trial court that there was no coverage in the present case because of the facts surrounding the accident and the policy terms as to "collision". This contention has been properly preserved for appellate review. It was upon this basis that the company initially and primarily denied payment of the loss. The mileage limitation was merely an additional reason for the denial. The opinion letter of trial counsel to the company, on the basis of which liability for the statutory penalty was denied, did not even refer to the mileage provision.
We reverse the decision of the Court of Appeals that the mileage limitation precludes recovery under the circumstances shown in this case. The cause is remanded to that court for consideration of the assignments of error made by the insurance carrier which were pretermitted, as to whether there was in fact coverage for this particular occurrence.
Costs in this Court are taxed to respondent. All other costs will be assessed by the Court of Appeals upon its disposition of the case.
COOPER, C.J., and BROCK, J., concur.
HENRY and FONES, JJ., dissent.
*356 HENRY, Justice (dissenting).
We confront an unfortunate collision between considerations of conscience and controlling concepts of law. The majority reconciles the conflict by a strained construction of the consistent holdings of our courts, leaving a clear rule of law on the one hand, and this case on the other. This decision will be productive of chaos, confusion and litigation. If this, or any other established rule of court-made law is unjust, it should be discarded forthrightly and a more just rule substituted.
I.
A threshold matter, ignored by the majority, might be addressed.
The pleadings in this case will not support a judgment. The complaint simply alleges that Bituminous issued a specific policy (made an exhibit to the complaint), insuring plaintiffs against all risk of loss. It was upon this contract, and this contract alone, that plaintiffs sought to recover. And this contract restricted coverage to "a radius of 500 miles of Hendersonville, Tennessee".
Plaintiffs did not plead estoppel or waiver and did not seek to reform the policy. The defendant, by answer, affirmatively pleaded the 500 mile coverage provision. Thus, the basic issue tendered by the pleadings, was whether plaintiffs sustained a loss within a radius of 500 miles of Hendersonville. They did not. Under no known principle of pleading and practice, may the issue of estoppel arise to permit a recovery in this action.
Inherent in the majority's opinion is a holding that the coverage provided in a liability insurance policy may be extended by estoppel. We disagree.
II.
It is a familiar principle of our law that estoppel may be relied upon to protect a right, but never to create one. It could be said that it is a shield, not a sword. It may not be invoked to broaden the coverage of an insurance policy. To permit its invocation, in such a case, would be to create a new contract for which no additional premium is paid. Inland Mut. Ins. Co. v. Hightower, 274 Ala. 52, 145 So. 2d 422 (1962). It must be borne in mind that there is a distinction between the coverage afforded by an insurance contract and an exclusionary provision. An estoppel may be relied upon to protect an insured against the enforcement of an exclusion in the contract under a proper factual setting; however, it is the prevailing view followed in the overwhelming majority of the jurisdictions of this country that the use of the doctrine will not be sanctioned to broaden the policy coverage or to provide protection against risks not specified in the policy.[1] The majority opinion is in the very teeth of this overwhelming view of the law.
In 16A Appleman, Insurance Law and Practice, Sec. 9090, 341-42 (1968), the general rule is stated thusly:
It has been repeatedly held that the doctrines of waiver and estoppel cannot be used to extend the coverage of an insurance policy or create a primary liability, but may only affect rights reserved therein... . [U]nder no conditions can the coverage or restrictions on coverage be extended by waiver or estoppel. (Emphasis supplied).
The immediate question for our consideration is whether the policy provision in the instant case constitutes coverage or an exclusion. In our view it is clearly coverage since it limits and defines the circumstances under which coverage will attach. Of course, in a very broad sense, it can be stated that every circumstance or condition not specifically included in the contract automatically operates to exclude every other circumstance or condition and, therefore, the fact that the policy limits coverage to 500 miles would automatically operate as an exclusion of all coverage beyond 500 miles. While this is true, broadly speaking, it is not correct within the meaning of the law *357 of estoppel as applied to insurance contracts.
In D'Angelo v. Cornell Paperboard Products Co., 59 Wis. 2d 46, 207 N.W.2d 846 (1973), the Court points out that an exclusion serves the purpose of taking out persons or events otherwise included in the defined scope of insurance coverage, and coverage refers to the sum of the risk against which the policy provides protection.
We have examined the decisional law of this jurisdiction in the light of these general principles and, upon examination, find that our cases, when properly construed, have generally followed the prevailing view.
A significant case, often cited by the courts of other states and in treatises, is Henry v. Southern Fire & Cas. Co., 46 Tenn. App. 335, 330 S.W.2d 18 (1958). The insureds, who were engaged in the logging business, sustained a loss and incurred substantial liability when a trailer became disengaged from the truck by which it was being pulled and crashed into an oncoming vehicle, killing one person, injuring others and causing considerable property damages. The company denied liability on the grounds that the trailer was not described in the policy. The trailer was not listed in the policy and it contained a specific exclusion of "any trailer owned or hired by the insured and not covered by like insurance in the Company". The insurance agent was familiar with the insureds' business activity, and gave them full assurances that they had complete liability coverage on their usual logging operation. The Court of Appeals, in a most excellent opinion by Judge Carney, reversed and remanded the case for a new trial, holding that if the insureds could convince the jury that the agent "assured them of full liability coverage, they are entitled to recover" under the policy, and "the company will be estopped to rely upon the terms of the Exclusion clause as a defense." 330 S.W.2d at 32. After reciting the claimed conduct of the agent the Court made this observation:
The result was the same to the complainants. They were lulled into a false sense of security. They were misled to their prejudice.
Ibid. at 30.
But it will be remembered that the Court of Appeals, in that case, was dealing with an exclusion and not coverage.
The strongest Tennessee case we find in support of the insureds' position in this lawsuit is Miller v. Monticello Ins. Co., 50 Tenn. App. 363, 361 S.W.2d 496 (1961). The insureds in that case were the owners and operators of a machine shop. Among other items of equipment, they owned a mobile welding machine that was insured against loss under a policy which restricted coverage to loss sustained on equipment while located or contained in certain described premises in Bruceton. The unit was destroyed by a fire at a point some seventeen miles away. The company denied liability on the basis that there was no coverage because, at the time of its destruction, it was not located at the place described in the policy. The agent of the company knew that this particular piece of equipment was used away from the place of business and the proof showed that he assured the policyholder that "his equipment was covered at all times and places and never called his attention to the fact that his equipment was not insured when away from his regular place of business." 361 S.W.2d at 498.
The Court, again speaking through Judge Carney, held:
Under these circumstances we think a jury might well find that the defendant's agent, Mr. Brower, and therefore the company itself, waived the restriction or limitation of coverage and also lulled Mr. and Mrs. Miller into a sense of false security by leaving them under the impression that they were fully covered under the terms of the policy which was issued. If such facts are true the company is estopped to rely upon this restriction or a limitation of coverage in the policy as a defense.
Ibid. at 499.
This case clearly addresses a matter of coverage as opposed to an exclusion, and is analogous to the factual situation in the *358 case at bar; however, it is not in accord with the general rule and is out of harmony with the later opinion of the Court of Appeals for the Middle Section in E.K. Hardison Seed Co. v. Continental Cas. Co., 56 Tenn. App. 644, 410 S.W.2d 729 (1966).
In the Hardison Seed Company case, the policy obligated the company to pay as "damages because of injury to or destruction of property, ... caused by accident." The insured was sued for breach of warranty based upon failure of certain seed to germinate. Hardison called upon Continental Casualty to defend under a comprehensive general liability insurance policy. It declined, contending that loss or damage because of breach of warranty, was not within the coverage of the contract.
The Court, speaking through Judge Humphreys, later a Justice on this Court stated:
[I]n keeping with the doctrine many times enunciated and never departed from that estoppel is available to protect a right, but never to create one (citing cases) we have no case in Tennessee in which the doctrine of estoppel was made the basis of recovery except where the loss was within the coverage provided by the insuring clauses of the contract. (citing cases).
So, in order for there to be a recovery on the basis of an estoppel, a paramount condition must be met, the acts of the agent relied on for the estoppel and the estoppel arising on account of these acts must result in a liability which would be within the insuring clauses of the contract.
410 S.W.2d at 733.
The majority opinion passes over this significant language and all but ignores this case.
Along with E.K. Hardison Seed Company, the Court of Appeals, in the instant case, relied upon Bituminous Fire & Marine Ins. Co. v. Izzy Rosen's, Inc., 493 F.2d 257 (6th Cir.1974), where the Court spoke through an excellent opinion by the late Judge William E. Miller.
Judge Miller treats E.K. Hardison Seed Company as "an important clarification of Henry", and observes:
When the Hardison and Henry decisions are read together it is clear that under Tennessee law a showing that an insurance agent told the insured that his policy contained full liability coverage is sufficient to estop the insurance company from relying on an exclusion in the policy to deny coverage. Similarly, if the agent mistakenly or negligently wrote a policy for the insured which the agent either knew or should have known did not provide the coverage that the insured wanted and needed, then the insurance company may not assert the exclusionary clauses. (Citing cases) But we have been unable to find any case in which a Tennessee court has used the doctrines of estoppel or negligence to write into an insurance policy coverage that was not specified in the contract. Instead, the cases are limited to the situation in which an insurance company is estopped to assert an exclusionary clause, thereby permitting the insured to rely on the coverage provisions in the policy. (Emphasis supplied).
493 F.2d at 260.
The majority opinion attempts to dilute the holding in this case and quotes no part of this language.
In Insurance Co. of No. Am. v. Federated Mut. Ins. Co., 518 F.2d 101 (6th Cir.1975), the Court correctly summarizes our law as follows:
The Tennessee rule ... appears to be that the determination whether an exclusion clause will be given effect depends, not only on the language of the provision, but also on whether, if the clause is given effect, the insurer, in light of its knowledge of the policyholder's business, would fail to provide the coverage that might reasonably be expected. (Emphasis supplied).
518 F.2d at 105-06.
This case is not even alluded to in the majority opinion.
*359 We now examine a few of the authorities from other jurisdictions.
In Albert v. Home Fire & Marine Ins. Co. of California, 275 Wis. 280, 81 N.W.2d 549, 553 (1957), the Court held that "the local agent's oral misinterpretation of unambiguous provisions as to coverage can not work a modification of the contract by estoppel or otherwise."
In Reeves v. New York Life Ins. Co., 421 S.W.2d 686, 688 (Tex.Civ.App. 1967), the court held that "[a] contract cannot be created by estoppel, (citing cases) and estoppel and waiver cannot bring within the coverage of a policy a loss which is expressly excluded therefrom."
In Imperial Cas. & Indem. Co. v. Carolina Cas. Ins. Co., 402 F.2d 41, 45 (8th Cir.1968), the court recognizes that estoppel may not be "invoked to create a liability for benefits not contracted for at all," and "that while there may be a waiver in matters of forfeiture the courts are unwilling to utilize estoppel to create a new contract."
In Looney v. Allstate Insurance Company, 392 F.2d 401, 408 (8th Cir.1968), the court, speaking through Judge Blackmun, now Associate Justice on the United States Supreme Court, applying Arkansas law, held that "waiver and estoppel usually cannot operate to extend coverage where none exists under the contract."
In State Automobile Insurance Ass'n v. Kooiman, 143 F. Supp. 614 (D.S.D. 1956), the court, applying South Dakota and Minnesota law, held that where the policy afforded coverage to loss or damage within a 50 mile radius, waiver or estoppel because of knowledge of the insurance agent, of use beyond that limit could not be utilized to provide extended coverage. In this regard, the Court said:
In the instant case the coverage is sought to be extended by the insured to include liability beyond the 50 mile radius without payment of additional premium. This risk was not included or contemplated by the terms of the policy, and the coverage may not be extended on the basis of waiver or estoppel because of knowledge by the agent of use beyond the express terms of the policy. 143 F. Supp. at 618.
To the same effect is Container Corp. of America v. Bituminous Cas. Corp., 252 A.2d 117 (Del. 1969).
III.
The reasoning of the majority opinion is highly persuasive, but the fact remains that it is out of harmony with the overwhelming majority view and with the decisions heretofore announced by the courts of Tennessee.
While the dictates of fairness and justice might indicate a departure from the established rule that estoppel may not be relied upon to expand the coverage provided by an insurance contract, this doctrine is too indelibly impressed into our law to justify making an exception which would, in effect, destroy the rule of law. Rules relating to contractual obligations should not be tampered with absent most compelling considerations. The stability of the law must be a continuing objective. While we are somewhat less than enthusiastic about the practices and procedures followed by Bituminous in this case and particularly with its failure to discuss either with its agent or with its insured, the operation as revealed by the monthly reports we cannot depart from what we consider to be an established rule of law in order to correct an apparent injustice.
We, therefore, would hold that the doctrines of waiver and estoppel may not be invoked, as a general rule, to broaden or increase the coverage of an insurance contract; but that they may be invoked in cases involving forfeitures, limitations or exclusions.
We would affirm the judgment of the Court of Appeals.
In complete candor, I concede that the majority reached a just conclusion under the peculiar facts and circumstances of this case. This was a hard case and "hard cases make bad law". I would be willing to change the rule of law so as to provide that *360 coverage may be extended by estoppel, under proper pleadings, and pursuant to clear, cogent and convincing proof, but cannot be a party to circumventing the law as, I submit, the majority does in this case.
Mr. Justice Fones joins in this dissent, except to the extent of the preceding paragraph. It is his view that the law not only is settled, but settled correctly.
NOTES
[1] Baird v. Fidelity-Phenix Fire Ins. Co., 178 Tenn. 653, 162 S.W.2d 384 (1942).
[1] See annotation, 1 A.L.R. 3d 1139 (1965).
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502 F. Supp. 2d 915 (2007)
UNITED STATES of America, Plaintiff,
v.
Mohamad Kamal ELZAHABI, Defendant.
Criminal No. 04-282 (JRT).
United States District Court, D. Minnesota.
June 5, 2007.
*916 Thomas M. Hollenhorst and W. Anders Folk, Assistant United States Attorneys, Office of the United States Attorney, Minneapolis, MN; John W. Van Lonkhuyzen, United States Department of Justice, Washington, DC; for plaintiff.
Paul C. Engh, Engh Law Office, Minneapolis, MN; Peter B. Wold and Aaron J. Morrison, Peter B. Wold, PA, Minneapolis, MN; for defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO SUPPRESS STATEMENTS
TUNHEIM, District Judge.
Defendant Mohamad Kamal Elzahabi has been charged with two counts of making false statements in violation of 18 U.S.C. § 1001(a)(2), and three counts of possessing fraudulent immigration documents in violation of 18 U.S.C. § 1546(a). The case is before the Court on defendant's motion to suppress statements. For the reasons explained below, the Court denies the motion.
BACKGROUND
Defendant seeks to suppress statements made during interviews with agents of the Federal Bureau of Investigation ("FBI") that began on April 16, 2004 and continued for 17 days. The following facts are derived from the testimony of FBI Special Agent Harry Samit at the evidentiary hearing held by the Court on April 4, 2006.
The Boston division of the FBI had been investigating defendant for several years, and had concluded that defendant was an associate of several terrorist suspects of interest to the Boston division. "Defendant moved to Minnesota during the fall of 2003. The Minneapolis division of the FBI then opened an investigation on defendant and he was placed under close surveillance. The primary goal of the investigation was to determine whether defendant was still in contact with the terrorist suspects.
Members of the Joint Terrorism Task Force in the Minneapolis Police Department aided in the investigation of defendant. Sergeant Andrew Smith was assigned to investigate defendant in connection *917 with an unrelated criminal offense, and over the course of that investigation Smith worked to develop a rapport with defendant. Defendant appeared to consider Smith a friend, and defendant invited Smith to attend social functions and prayer at the mosque attached to his residence. While defendant knew Smith was a member of the Minneapolis Police Department, it appears that defendant did not know that Smith was a member of the Joint Terrorism Task Force.
On April 16, 2004, Smith left defendant a voice mail message indicating his desire to attend a prayer session at the mosque that afternoon. When defendant returned the phone call later that day, defendant indicated that he had plans to leave the country and establish a trucking business with his brother in Canada. Defendant told Smith that he wanted to obtain United States citizenship so that he could more easily cross the international border. Defendant asked Smith whether he would encounter any immigration or security issues that would prevent him from obtaining citizenship. Smith offered to arrange a meeting that evening with an associate of his who was familiar with immigration rules. Smith contacted another member of the Joint Terrorism Task Force, who agreed to pose as a former employee of the Immigration and Naturalization Service ("INS"). In addition, Smith contacted FBI Special Agent Harry Samit and Special Agent Christopher O'Leary, who specialize in terrorism investigation.
Smith arranged to have defendant meet with the person posing as the former INS employee over dinner that evening. During the course of that dinner, defendant was' told that the FBI keeps lists of persons of security interest. Smith offered to run defendant's name through the systems at his disposal to determine whether his name might appear on any watch lists.
Smith also offered to contact a friend of his in the FBI who might be able to help if defendant's name appeared on a watch list. After the dinner had ended, Smith went to the Minneapolis FBI office to explain the situation to Samit and O'Leary, and they decided how to proceed. Later that evening, Smith contacted defendant and told him that his name was listed as someone of interest to the FBI. Defendant requested that Smith set up a meeting with his friend in the FBI.
In the late hours of April 16, 2004, Smith introduced defendant to Samit and O'Leary. The FBI agents met defendant on the street alongside Smith's car. Smith told defendant that the agents work on terrorism and could explain why defendant was on the watch list. Defendant again explained that he was interested in speaking with the agents because he wanted United States citizenship and wanted to know how he could get his name removed from the watch list. The agents began to interview defendant, asking him about things that would typically trigger presence on a watch list, such as foreign travel, national origin, and membership in certain groups.
Defendant was dressed only in a T-shirt and jeans, and the weather was cool. Defendant accepted an offer by the agents to continue the interview in Smith's parked car. Defendant sat in the backseat with Samit, while Smith and O'Leary sat in the front seat. The agents asked detailed questions about defendant's foreign travel. Samit testified at the evidentiary hearing that defendant did not at first admit to all the countries to which he had traveled, and that Samit told defendant that they knew he had gone to Afghanistan and had received a combat wound. Samit testified that defendant then asked "how much trouble am I in?" (Tr. at 85.) Samit replied that as investigators they could not *918 answer that question. At this time defendant said he was warm enough and he let himself out of the police vehicle.
A short time thereafter, Samit suggested that they continue the interview at Minneapolis field office of the FBI. Samit explained that it would better to continue the interview in a more comfortable place with fewer distractions. Samit further explained that the FBI needed help from people with his knowledge and experience, and that the FBI would be very interested in learning more about his travel, experiences, and associates. Defendant agreed to continue the interview at the FBI office.
Upon arriving at the FBI office, defendant was offered water and an opportunity to use the restroom. Agents escorted defendant to the restroom and remained at the door while defendant used the restroom. The agents then brought defendant to the break room at the FBI office. Agents would typically eat their lunches in this room. It has windows, a large conference table, soda machine, and a television. At this time of the night, however, defendant and the agents were the only people in the room.
The interview resumed at about 1:00 a.m. on April 17, 2004. At the start of the interview, the agents thanked defendant for his cooperation and informed him that participation in the interview was voluntary on his part. He was told that he could stop the interview if he later decided that he no longer wished to cooperate. Defendant appeared eager to cooperate and the interview continued over the course of the next four to five hours. Defendant did not appear tired despite the late hour. Defendant was previously employed as a long haul truck driver and was accustomed to driving through the night. His normal waking hours were evening to early morning.
At about 6:00 or 7:00 a.m. on April 17, 2004, the interview was completed. The agents again thanked defendant for his cooperation and reminded him that the interview was voluntary. The agents explained that some of the information he provided was very useful to them, and the agents asked him whether he would agree to resume the interviews later. Defendant agreed that there was more that could be talked about. The agents offered to have agents accompany defendant to a nearby hotel instead of returning him to his residence. They explained that the FBI would pay for the hotel and that defendant could rest, work out, and order meals. The agents suggested that the interview continue after defendant had an opportunity to rest.
The hotel was within walking distance of the FBI field office. The room in which defendant stayed had kitchen facilities, a family room, and a bedroom. Two agents were assigned to accompany defendant at all times. The agents stayed in the family room, and defendant had the bedroom to himself. The agents accompanied defendant if he wished to use the workout room or go to a restaurant. The phone in the bedroom had been removed, and defendant's cell phone was left with the agents.
The interview resumed at about 7:00 p.m. on April 17, 2004. The agents again reminded defendant that the interview was voluntary and that he could stop participating at any time. They also informed him that he had the right to an attorney. Defendant replied that he did not need a lawyer and the agents proceeded with the interview. The interview lasted five or six hours.
The interview process continued over the course of 17 days. A total of 13 interviews were conducted. At the start of each interview, the agents reminded defendant that his participation in the interviews was voluntary and that he _could stop participating at any time.
*919 Over the 17-day period, defendant participated in two polygraph tests. The first test was administered on April 18, 2004, and the second test was administered on May 2, 2004. As part of the polygraph process, there is an advice of rights procedure. On April 18, 2004, one of the agents read defendant his rights, and then defendant was asked to read the advice of rights form aloud as well. Defendant signed the advice of rights form and Samit and O'Leary witnessed it. This was the first time defendant received a full Miranda warning. Defendant also signed forms in dicating his consent to have his residence searched and his consent to the polygraph examination. Before the polygraph exam on May 2, 2004, defendant again signed an advice of rights form and a form indicating his consent to the polygraph examination.
Defendant signed a document titled "Voluntary Statement" on April 27, 2004. (Gov't Ex. 4.) The document states that defendant "voluntarily and willingly accompanied Special Agents of the FBI since April 16, 2004." It states that defendant has been repeatedly told that he could leave at any time and can refuse to answer any questions. It states that defendant has "chosen to answer [the agents'] questions in hopes of assuring them that I do not pose a threat to the United States." It states that defendant hopes to obtain United States citizenship but that the agents have made no promises to him. It states that no weapons were displayed to defendant and that he has not been threatened. It states that defendant stayed at a hotel in downtown Minneapolis where FBI agents have accompanied him but that his movements have not been restrained.
The agents conducted a videotaped interview on May 3, 2004. A transcript of the beginning of the interview was prepared. Defendant indicates that he has been trying to be helpful and to prove himself, but states that the agents "take everything against me." (Gov't Ex. 7.) O'Leary states, "But I want you to understand before we do this again this has got to be completely voluntary on your part. Okay? You are not under arrest." Defendant replies, "From the beginning it has been voluntary." O'Leary continues, "Absolutely. You are not under arrest. You don't have to answer our questions. You can stop at any time. You can decide if you want to leave at any time. Okay? This has got to be voluntary." Defendant then replies, "It is always voluntary. I know you guys are under pressure. I'm trying to help but you guys won't understand." O'Leary then summarizes the plan for the questioning, and then Samit says to defendant, "And just remember, we're not putting you under pressure. Okay? We're here working through this time line." Defendant smirks and interrupts Samit stating, "Two weeks, Harry? Two weeks, Harry? . . . But when you press my brain that's it. [I] mean, what do you want. You should know me by now." Samit then assures defendant that the questioning will cover "easy stuff." Defendant replies, "Can I have a drink? God, I would, my head gonna explode." The interview lasted about four hours. At the end of the interview, the agents thanked defendant for his cooperation and indicated that they would like the interview to continue on the following day.
The interview resumed on May 4, 2004. During the course of that interview, the agents showed defendant photographs and asked him if he could identify the individuals pictured. The agents and defendant disagreed about the identity of one of the individuals, and defendant got upset. At that point, he told the agents that he no longer wanted to talk with them. The interview stopped immediately.
The agents spoke with an Assistant United States Attorney, and the attorney *920 instructed agents to place defendant under arrest. On the evening of May 4, 2004, defendant was arrested on a material witness warrant from the Southern District of New York. During the course of the arrest, defendant told one of the agents that he should have gotten a lawyer.
Defendant was charged by complaint on June 24, 2004. He was indicted on July 7, 2004. The prosecution filed a superceding indictment on December 6, 2005. On February 28, 2006, defendant filed the motion to suppress statements, and on April 4, 2006, the Court held an evidentiary hearing and heard oral argument on the motion.
ANALYSIS
I. MOTION TO SUPPRESS STATEMENTS
A. Provision of a Miranda Warning
"The basic rule of Miranda is that an individual must be advised of the right to be free from compulsory self-incrimination, and the right to the assistance of an attorney, any time a person is taken into custody for questioning." United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir.1990) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). "Miranda accordingly requires that a warning as to the availability of the privilege against self-incrimination and to the assistance of counsel be issued prior to questioning whenever a suspect is (1) interrogated (2) while in custody." Id. (emphasis original).
An individual need not be arrested formally to be "in custody." As the Eighth Circuit in Griffin explained:
Custody occurs either upon formal arrest or under any other circumstances where the suspect is deprived of his freedom of action in any significant way. In determining whether a suspect is "in custody" at a particular time we examine the extent of the physical or psychological restraints placed on the suspect during interrogation in light of whether a "reasonable person in the suspect's position would have understood his situation" to be one of custody. If [the defendant] believed his freedom of action had been curtailed to a degree associated with formal arrest, and that belief was reasonable from an objective viewpoint, then [the defendant] was being held in custody during the interrogation. The determination of custody arises from an examination of the totality of the circumstances.
922 F.2d at 1347 (emphasis original) (citations omitted). The Eighth Circuit has articulated a six-element test for this determination of custody, including:
(1) Whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest;
(2) Whether the suspect possessed unrestrained freedom of movement during questioning;
(3) Whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions;
(4) Whether strong arm tactics or deceptive stratagems were employed during questioning;
(5) Whether the atmosphere of the questioning was police dominated; or,
(6) Whether the suspect was placed under arrest at the termination of the questioning.
Griffin, 922 F.2d at 1349. The first three indicia are "mitigating factors," the presence of one or more of which "would tend *921 to mitigate the existence of custody at the time of the questioning." Id. The final three indicia are "coercive factors," the presence of one or more of which would tend to compel a finding of custody. Id.
Defendant argues that his motion to suppress should be granted because the agents obtained statements from him in a custodial setting prior to providing him a full Miranda warning. He asserts that he was in custody starting from the interviews at the FBI office on April 17, 2004. Defendant acknowledges that he received a Miranda warning prior to his polygraph examination on April 18, 2004, but argues that this subsequent warning cannot cure the prior custodial interviews on April 17, 2004 that occurred without the benefit of the Miranda warning. See Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004); United States v. Ollie, 442 F.3d 1135, 1142-1143 (8th Cir.2006) (holding that an officer's failure to give a Miranda warning prior to an initial custodial interview may render inadmissible statements given after a subsequent Miranda warning). Defendant asserts that he was in custody at the FBI office because he was never free to actually leave.
To determine whether defendant was in custody during the interview that took place on April 17, 2004, the Court applies the six Griffin factors. Griffin, 922 F.2d at 1349. The first factor asks whether the defendant was told that the interview was voluntary, that he was free to leave, or that he was not under arrest. Id. Before the interview at the FBI office commenced, the agents thanked defendant for his cooperation and informed him that participation in the interview was voluntary on his part. He was told that he could stop the interview if he later decided that he no longer wished to cooperate. An explicit assertion that the defendant may end the encounter provides "a clear understanding of his or her rights and generally removes any custodial trappings from the questioning." Ollie, 442 F.3d at 1138 (citing United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004)). The first factor weighs heavily towards a finding of non custodial status.
The second factor asks whether the defendant possessed unrestrained freedom of movement during questioning. Griffin, 922 F.2d at 1349. It is undisputed that agents accompanied defendant at all times, but no evidence was presented that agents restrained defendant's freedom of movement during the questioning. Indeed, defendant signed a statement indicating that he was "never restrained in any way" during the interviews. (Gov't Ex. 4.) This negative finding does not mean that defendant was free to move about, however, because there was no evidence presented that defendant tried to move about or leave the interview room during the questioning. See Ollie, 442 F.3d at 1138. It is therefore impossible to determine whether defendant retained his freedom of movement during the questioning.[1]
The third factor asks whether the defendant initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions. Griffin, 922 F.2d at 1349. Here, Smith initiated the first contact between police and defendant on April 16, 2004, but Smith did not contact defendant for questioning. Rather, Smith *922 contacted defendant to accept his invitation to attend an afternoon prayer session. Smith later arranged the contact between defendant and the FBI agents, but the contact occurred only after defendant asked Smith to make the arrangements. Although defendant sought out contact with the FBI agents, it is clear to the Court that Smith orchestrated the meeting so that FBI agents would be in a position to ask defendant questions. Under these circumstances, the Court cannot find that defendant initiated contact with authorities. However, after contact with the FBI was established, it is clear that defendant voluntarily acquiesced to the agents' request that he respond to their questions. Defendant appeared eager to cooperate with the agents, and he voluntarily agreed to submit to the questioning at the FBI office. This factor therefore weighs towards a finding of non-custodial status.
The fourth factor asks whether strong arm tactics or deceptive stratagems were employed during questioning. Griffin, 922 F.2d at 1349. Defendant was never threatened, nor were weapons ever displayed to him. Smith deceived defendant into believing that Smith was acting as a friend to help defendant obtain United States citizenship. However, this deceit does not bear on whether the defendant would have felt free to terminate the interviews. See Ollie, 442 F.3d at 1139 (holding that the only deceit that affects a custody determination is that which would act to prevent a reasonable person from terminating an interview). Neither was defendant's desire to obtain citizenship used to coerce cooperation. Cf. United States v. Beraun-Panez, 812 F.2d 578, 581 (9th Cir. 1987) (finding that defendant was in custody when a reasonable person could interpret the remarks of officers as requiring the defendant to confess if the defendant was to avoid deportation). The Court finds that no strong arm tactics or relevant deceptive stratagems were used. This factor therefore weighs toward a finding non-custodial status.
The fifth factor asks whether the atmosphere of the questioning was police dominated. Griffin, 922 F.2d at 1349. The interview took place at the FBI office, which is the "home turf" of the agents. Ollie, 442 F.3d at 1139. In addition, the interview lasted for several hours. This factor therefore weighs toward a finding of custodial status. Id. However, because the interview took place in a break room rather than a typical interrogation room, this factor does not weigh heavily toward finding that defendant was in custody. United States v. Galceran, 301 F.3d 927, 931 (8th Cir.2002) (explaining that not all interviews at the police station should be considered police dominated).
The sixth and final factor asks whether the suspect was placed under arrest at the termination of the questioning. Griffin, 922 F.2d at 1349. Defendant was not placed under arrest at the termination of the interviews on April 17, 2004. Of course, the agents did not want to arrest defendant at that time because he was still willing to respond to questions. On May 4, 2004, when defendant finally refused to answer any more questions, the agents placed him under arrest. The Court is convinced that the agents would have placed defendant under arrest whenever he decided that he would no longer willingly participate. Under these circumstances, this factor does not weigh heavily in either direction.
After considering the totality of the circumstances, the Court finds that defendant was not in custody during the first interviews at the FBI office on April 17, 2004. The agents were careful to inform defendant at the beginning of the interviews that his participation was voluntary and that he could terminate his participation at any time. The agents again advised defendant of the voluntary nature of his participation *923 at the end of the interviews. This is powerful evidence that a reasonable person would have understood that he was free to terminate the interviews. Czichray, 378 F.3d at 826. Indeed, on subsequent days in the interview process, defendant acknowledged verbally and in writing that he understood that his participation was voluntary.
Defendant was given a Miranda warning on April 18, 2004. Because the Court finds that defendant was not in custody prior to administration of the Miranda warning, defendant's argument that his statements must be suppressed because they were taken without the benefit of a Miranda warning must fail.
B. Voluntariness of Defendant's Consent to Participate In Interviews
Defendant argues in the alternative that his statements must be suppressed because his consent to participate in the interviews was the product of coercion. A defendant's consent is voluntary "if it was the product of an essentially free and unconstrained choice, rather than the product of duress or coercion, express or implied." United States v. Morreno, 373 F.3d 905, 910 (8th Cir.2004) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 225, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)).
"The voluntariness of a consent is a question of fact to be determined from the totality of the circumstances surrounding both the environment of the encounter and the nature of the consenting party." Id. Relevant aspects of the environment include the length of the detention, whether the police used threats or physical intimidation, whether the police made promises or misrepresentations, whether the defendant was in custody when the consent was given, and whether the consent occurred in a public or secluded place. United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001). Individual characteristics relevant to the voluntariness of consent include age, general intelligence and education, whether the defendant was under the influence of drugs, whether the defendant had been given Miranda warnings, and whether the defendant had experienced prior arrests and was thus aware of the protections that the legal system affords to suspected criminals. Id.
Defendant argues that he repeatedly. sought to end the interview process "but was instead strung along" by the agents. (Mem. In Supp. at 14.) Because agents intended to arrest him as soon as he stopped cooperating, defendant argues that his choice to cooperate was a constrained choice from the beginning.
The evidence shows that defendant chose to cooperate with agents because he thought he could clear his name through his cooperation. Defendant was clearly deceived by the officers and now understandably regrets his willingness to cooperate, but the Court is convinced that defendant freely made the choice to cooperate. In fact, there is no evidence in the record that defendant ever sought to end the interview process until May 4, 2004. One of the key factors that courts consider when assessing the voluntariness of a consent is whether a defendant had been given a Miranda warning and therefore knew he had a right to refuse to answer questions. Bustamonte, 412 U.S. at 227, 93 S. Ct. 2041. Here, the agents repeatedly advised defendant that his participation in the interviews was voluntary and that he could end the interviews at any time.[2] And as discussed above, defendant *924 acknowledged his understanding of the voluntariness of his participation both verbally and in writing. In fact, the defendant acknowledged time and time again that he understood his rights.
When defendant finally stated on May 4, 2004 that he would no longer willingly answer questions, the agents promptly stopped the interview. If any questioning had occurred after this point, the Court would have suppressed any statements thereafter obtained as the product of coercion. The Court agrees with defendant that the agents took full advantage of defendant's willingness to answer questions over the 17-day period and planned all along to arrest him as soon as he stopped answering questions, but in the Court's view, this does not make defendant's choice to participate in the interviews the product of coercion.
To be sure, the Court is significantly troubled by the excessively long duration of the interviews here. There is a real danger that interviews that last over several days will become coercive. Ashcraft v. Tennessee, 322 U.S. 143, 153, 64 S. Ct. 921, 88 L. Ed. 1192 (1944). However, the Court finds from a careful review of the record no evidence that defendant's initial willingness to cooperate had with the passage of time degraded to the point that the interviews had become coercive. Moreover, the length of an interrogation is just one of many factors to be considered when assessing the voluntariness of consent. Smith, 260 F.3d at 924. The Court must assess the totality of the circumstances, including both the characteristics of the defendant and the environment of the interrogation. Morreno, 373 F.3d at 910. While 17 days of interrogation is undoubtedly long, a simple quantitative measure of the length of the interrogation cannot compel the conclusion that the consent was coerced.
In sum, despite the deceptive tactics and methods used, and the lengthy interviews, the Court finds that the circumstances present here do not show that Elzahabi's participation in the interviews was the product of coercion. The record shows that the defendant continuously expressed his understanding that he could stop the interviews at any time, yet nevertheless willingly continued to participate in a misguided attempt to clear his name.
ORDER
Based on the foregoing, and all the records, files, and proceedings herein, IT IS HEREBY ORDERED that defendant's motion to suppress statements [Docket No. 55] is DENIED.
NOTES
[1] The prosecution points out that defendant let himself out of Smith's parked police car during the interview on the street. Defendant clearly enjoyed freedom of movement during the interview on the street, but the question for the Court is whether defendant retained his freedom of movement during the interview at the FBI office. Although there is no evidence that defendant attempted to leave the interview room at the FBI office, the fact that defendant was previously allowed to move about freely helps to set a non-custodial tone for the subsequent interview at the FBI office.
[2] Although the fact that agents repeatedly advised defendant of the voluntary nature of his participation is strong evidence that defendant's statements were voluntary, the totality of the circumstances must be considered. Surely it is possible that statements can be coerced even when agents tell a defendant that his participation is voluntary, especially if the interviews last over several days. For example, suppression might be warranted in a situation where the accused has characteristics that make him or her more vulnerable, or in a situation where the environment in which the consent was given was more intimidating. Bustamonte, 412 U.S. at 226, 93 S. Ct. 2041.
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544 S.W.2d 150 (1976)
Ezell WILLIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 53376.
Court of Criminal Appeals of Texas.
December 8, 1976.
*151 Michael S. Sundquist, Dallas, court appointed, for appellant.
Henry Wade, Dist. Atty., and Sue LaGarde, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The conviction is for theft of "merchandise" of the value of at least $20.00 but less than $200.00. The court assessed punishment at 90 days in jail and Willis duly perfected this appeal.
The complaint and information upon which this prosecution was instituted alleged the theft of "merchandise." This description of the property alleged to be stolen was insufficient under previous decisions of this Court then in effect.
Article 21.09, V.A.C.C.P., provided:
"When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient...."[1]
In Luce v. State, 88 Tex.Cr. 46, 224 S.W. 1095 (1920), we held that an indictment for swindling which described the property as "furniture and equipment" was insufficient. In Scott v. State, 125 Tex. Crim. 396, 67 S.W.2d 1040 (1934), an embezzlement indictment which described property as "certain lubricating oil" was held insufficient. In Howk v. State, 138 Tex. Crim. 275, 135 S.W.2d 719 (1940), an indictment for swindling was held defective where the property was described only as "personal property of the value of $6.00." In Leos v. State, 155 Tex. Crim. 478, 236 S.W.2d 817 (1951), a theft indictment described the property which was alleged to have been stolen as "oil field equipment of the value of over $50.00." This indictment was held to be fatally defective. In Oakley v. State, 167 Tex. Crim. 630, 323 S.W.2d 43 (1959), a theft indictment which alleged the stolen property to be "seed of the value in excess of $50" was held fundamentally defective even though no motion to quash had been filed. More recently, in Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971), a theft indictment which alleged the stolen property to be "tires of the value of over $50.00" was held fundamentally defective. Only this year, in Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976), the description of stolen property in a theft indictment as "barbed wire" was held insufficient.
In the instant case the description of the alleged stolen property as "merchandise" is less descriptive than "tires" or "barbed wire."
The judgment of conviction is reversed and the prosecution is ordered dismissed.[2]
NOTES
[1] Effective June 19, 1975, this statute was amended to read:
"If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.. . ."
[2] The writer is following past decisions but would change the rule (when a majority agrees) and hold that absent an exception to, or motion to set aside, the complaint and information the matter would not be subject to review on appeal.
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502 F. Supp. 776 (1980)
DATA GENERAL CORP., INC.
v.
CITIZENS NATIONAL BANK OF FAIRFIELD.
Civ. No. B 78-204.
United States District Court, D. Connecticut.
February 29, 1980.
*777 Ronald J. Cohen, Lawrence W. Iannotti, Tyler, Cooper, Grant, Bowerman & Keefe, New Haven, Conn., for plaintiff.
L. Douglas Shrader, Charles M. Needle, Zeldes, Needle & Cooper, Bridgeport, Conn., for defendant.
*778 MEMORANDUM OF DECISION GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
ELLEN B. BURNS, District Judge.
Plaintiff, a Delaware corporation with its principal place of business in Westboro, Massachusetts, designs and produces computer hardware and software. Plaintiff entered into a contract, dated November 13, 1976, with B.B.S. Systems, Inc. (hereinafter B.B.S.), located in Fairfield, Connecticut, to sell certain computer equipment to B.B.S., which equipment was to be used by the Town of North Haven. Some time thereafter, defendant, Citizens National Bank of Fairfield, a national banking corporation located in Fairfield, Connecticut, was contacted to serve as the issuing bank in a letter of credit in which plaintiff would be the beneficiary. A letter was written on April 4, 1977, by defendant's president, Mr. Raymond T. Bogert, to plaintiff, Bogert Affidavit, Exh. 1 (filed June 14, 1979), and a Mailgram was returned on April 13, 1977. On April 22, 1977, Bogert mailed two letters to plaintiff, with copies sent to B.B.S. One letter read in full:
Based on Assignment of funds to us by the subject and originating from the Town of North Haven, this Bank hereby commits to honor your draft in an amount not to exceed $83,000 relative to the Data General-B.B.S. OEM contract of November 13, 1975, provided:
1) Said draft is in bankable form, and
2) Said draft is accompanied by a certification that the items called for in Town of North Haven purchase order No. 12991, dated 3/2/77, have been delivered and have successfully completed the Data General standard diagnostic test.
We have endeavored to cover all the essential elements in your Mailgram of April 13, but if there are any questions, please contact the undersigned.
Bogert Affidavit, Exh. 2. The other letter read in full:
Based on Assignment of funds to us by the subject and originating from the Town of North Haven, this Bank hereby commits to honor your draft in an amount not to exceed $83,000, relative to the Data General-B.B.S. OEM contract of November 13, 1975, provided:
1) Said draft is in bankable form, and
2) Said draft is accompanied by a certification provided by Data General Corp. that all the equipment supplied by Data General Corp. as called for in B.B.S. Systems purchase order # TNH-01 dated 12-12-76, will have completed the running of the Data General Standard Diagnostic Test.
3) This amount will be paid directly to Data General Corp., Route 9, Westboro, Mass. 01591, no later than 30 days after receipt by Citizen's National Bank of Fairfield, unless Data General Corp. has recieved [sic] payment in full from B.B.S. Systems Inc. Any partial payment from B.B.S. Systems Inc. against referenced purchase order number will reduce the amount to be covered under this document.
Bogert Affidavit, Exh. 3; Lawrence Affidavit, Exh. A (filed Dec. 6, 1978); Complaint, Exh. A (filed May 31, 1979).[1]
On October 21, 1977, plaintiff mailed a letter to Mr. Robert Winstanley, of the defendant bank, certifying that the computer equipment had passed the required tests and also enclosing a draft, dated October 20, 1977, for payment in the amount of $82,070.50.[2] Lawrence Affidavit, Exhs. B *779 and C; Complaint, Exhs. B and C. On February 16, 1978, Winstanley wrote a letter to plaintiff in which he denied the bank's obligation to make payment against the October 20, 1977 draft. Lawrence Affidavit, Exh. D; Complaint, Exh. D.[3] In this suit, based upon diversity jurisdiction, plaintiff claims it is entitled to payment of $82,070.50 plus attorneys fees and costs.
Defendant opposes plaintiff's motion for summary judgment on the grounds that there are genuine issues of material facts to be resolved, including questions whether there had been a valid contract between plaintiff and defendant, whether plaintiff had made its acceptance of the contract known to defendant, whether acceptance was a condition precedent to the letter of credit, whether the April 22, 1977, letter constituted the letter of credit, whether the assignment of funds from B.B.S. to defendant was a condition of the letter of credit, and whether all other conditions were met. The court disagrees, for suits concerning letters of credit are especially appropriate for determination by motions for summary judgment, whether on cross-motions by both parties, e. g., Bossier Bank & Trust Co. v. Union Planters National Bank, 550 F.2d 1077, 1078 (6th Cir. 1977); Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d 461, 463 (2d Cir. 1970); Dulien Steel Products, Inc. v. Bankers Trust Co., 298 F.2d 836, 837 (2d Cir. 1962); Beathard v. Chicago Football Club, Inc., 419 F. Supp. 1133, 1136 (N.D.Ill. 1976); motions for summary judgment by the defendant bank, e. g., Barclays Bank D.C.O. v. Mercantile National Bank, 481 F.2d 1224, 1226 (5th Cir. 1973), cert. dismissed, 414 U.S. 1139, 94 S. Ct. 888, 39 L. Ed. 2d 96 (1974); Far Eastern Textile, Ltd. v. City National Bank & Trust Co., 430 F. Supp. 193 (S.D.Ohio 1977); or motions for summary judgment by the plaintiff beneficiary, e. g., New York Life Insurance Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 378 A.2d 562 (1977). As the district court observed in West Virginia Housing Development Fund v. Sroka, 415 F. Supp. 1107, 1110 (W.D.Pa.1976), "Liability on the letter of credit presents solely legal issues and thus can be disposed of by the court on a motion for summary judgment." (emphasis in original). Cf. Dovenmuehle, Inc. v. East Bank of Colorado Springs, N.A., 563 P.2d 24, 27 (Colo.App.1977) (evidence offered by defendant bank to prove the intent of the parties to a letter of credit was excluded properly). Moreover, the affidavits of Richard Lawrence, plaintiff's regional credit manager, and of Bogert do not differ as to the sequence of events; they only dispute the significance of the events.
Letters of credit are governed by Article 5 of the Uniform Commercial Code [hereinafter U.C.C.], codified in Connecticut at Conn.Gen.Stat. §§ 42a-5-101 to 42a-5-117.[4]*780 Letters of credit commonly are used to facilitate commercial transactions between reluctant sellers and buyers, both of whom hesitate to initiate the exchange of money for goods. In a letter of credit, one or more banks function as intermediaries to avoid such an impasse. See generally Starr, Connecticut Code Comments, 20 Conn.Gen.Stat. Ann. 119-26 (1960); J. White and R. Summers, Uniform Commercial Code §§ 18-1 to 18-9 (1972); 50 Am.Jur.2d, Letters of Credit §§ 1-41 (1970 and 1979 Supp.) A letter of credit is designed to provide an assurance to the selling party of prompt payment upon presentation of documents, thereby substituting the credit of the bank for that of the buyer. Pringle-Associated Mortgage Corporation v. Southern National Bank of Hattiesburg, 571 F.2d 871, 874 (5th Cir. 1978); Venizelos, S.A. v. Chase Manhattan Bank, supra, 425 F.2d at 464; West Virginia Housing Development Fund v. Sroka, supra, 415 F.Supp. at 1109-10, 1112; Dynamics Corp. of America v. Citizens & Southern National Bank, 356 F. Supp. 991, 995 (N.D.Ga.1973); New York Life Insurance Co. v. Hartford National Bank & Trust Co., supra, 173 Conn. at 497, 378 A.2d 562. The particular letter of credit in this case falls within the ambit of U.C.C. § 5-102(1)(a) as a "credit issued by a bank if the credit requires a documentary draft or a documentary demand for payment." A letter of credit is defined as "an engagement by a bank or other person made at the request of a customer and of a kind within the scope of section 42a-5-102 that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit." U.C.C. § 5-103(1)(a). The defendant here is the issuer, i. e., the bank or other person issuing a credit. U.C.C. § 5-103(1)(c). The plaintiff, the seller of the computer equipment, is the beneficiary, for it is the "person who is entitled under its terms to draw or demand payment." U.C.C. § 5-103(1)(d). B.B.S., the buyer of the equipment, is the customer, as that company was the "buyer or other person who causes an issuer to issue a credit." U.C.C. § 5-103(1)(g). The U.C.C. provides that no particular form of phrasing be required for a letter of credit. The only requisites are that the letter of credit be in writing and signed by the issuer. U.C.C. § 5-104(1).
In a letter of credit situation, there are ordinarily three separate and distinct contracts involved: (1) the contract between a bank and its customer (usually the buyer) whereby the bank agrees to issue the letter of credit to the beneficiary (usually the seller); (2) the contract of sale between the buyer and the seller whereby, among other things, the seller agrees to obtain payment under the letter of credit by drawing drafts thereunder and presenting them to the bank accompanied by documents specified by the buyer; and (3) the letter of credit itself, which is a contract between the bank and the beneficiary (usually the seller) whereby the bank agrees to pay the drafts drawn under the letter of credit and presented to it by the beneficiary if they are accompanied by the requisite documents. Venizelos, S.A. v. Chase Manhattan Bank, supra, 425 F.2d at 464-65; Far Eastern Textile, Ltd. v. City National Bank & Trust Co., supra, 430 F.Supp. at 195; Savage v. First National Bank & Trust of Tulsa, 413 F. Supp. 447 (N.D.Okl. 1976); Dynamics Corp. of America v. Citizens & Southern National Bank, supra, 356 F.Supp. at 995. A letter of credit is entirely independent of the underlying contract of sale between the customer and beneficiary; as long as the documents of the beneficiary are in order, the issuing bank must honor the demand for payment, regardless of whether the goods conform to the contract of sale. U.C.C. § 5-114, comment 1; U.C.C. § 5-109(1)(a) and comment 1; Pringle-Associated Mortgage Corp. v. Southern National Bank of Hattiesburg, supra, 571 F.2d at 874; Courtaulds North America, Inc. v. North Carolina National Bank, 528 F.2d 802, 805 (4th Cir. 1975); *781 Venizelos, S.A. v. Chase Manhattan Bank, supra, 425 F.2d at 465; Dulien Steel Products, Inc. v. Bankers Trust Co., supra, 298 F.2d at 841; Far Eastern Textile, Ltd. v. City National Bank & Trust Co., supra, 430 F.Supp. at 195; Bossier Bank & Trust Co. v. Union Planters National Bank, No. C75-101 (W.D.Tenn. Aug. 25, 1975), aff'd and reprinted in 550 F.2d 1077, 1081 (6th Cir. 1977); New York Life Insurance Co. v. Hartford National Bank & Trust Co., supra, 173 Conn. at 497, 498-99. This independence is even true in cases in which the letter of credit specifically incorporated the underlying contract of sale, CNA Mortgage Investors, Ltd. v. Hamilton National Bank, 540 S.W.2d 238 (Tenn.App.1975), or when an inadvertent error in the price was made, It's Devine Industries, Ltd. v. Bank Leumi Trust Co. of New York, 22 U.C.C. Rep. Serv. (West) 130 (N.Y.S.Ct.1977). The sole interest of the issuing bank in a letter of credit transaction is in the documents to be presented, unless the parties agree otherwise; those documents must be exactly as stated in the letter of credit and the bank is obligated to pay only if the beneficiary has strictly complied with the terms of the letter.[5]Courtaulds North America, Inc. v. North Carolina National Bank, supra, 528 F.2d at 805-06; U.S. Industries v. Second New Haven Bank, 462 F. Supp. 662, 664 (D.Conn.1978); Bossier Bank & Trust Co. v. Union Planters National Bank, supra, 550 F.2d at 1081; Dynamics Corp. of America v. Citizens & Southern National Bank, supra, 356 F.Supp. at 995. The bank's function is "basically ministerial," Far Eastern Textile, Ltd. v. City National Bank & Trust Co., supra, 430 F.Supp. at 196, for the bank is deprived of any discretion not granted within the letter of credit itself, Dulien Steel Products, Inc. v. Bankers Trust Co., supra, 298 F.2d at 840.
Defendant argues that the letter of credit was not binding upon it because plaintiff failed to "accept" the terms of the agreement. Such an acceptance was explicitly required in the letter of credit agreement in Okay Industries, Inc. v. Continental Bank of Harvey, Civil No. H78-342 (D.Conn. June 18, 1979), reprinted in 5 Conn.L.T., No. 34, at 9, col. 1 (Aug. 20, 1979), in which the defendant issuing bank requested the plaintiff beneficiary to indicate satisfaction with the letter of credit's provisions by signing acceptance on a copy of the letter and returning it to the defendant. Id. at 9 col. 2 and n. 1. No such explicit instructions were made here.
Defendant suggests that it cannot ascertain which letter of credit, if any, was accepted by plaintiff. It is clear that the April 4, 1977, letter was rejected as plaintiff asked for major revisions in its telex of April 13, 1977. A more difficult question would be to determine which of the letters of April 22, 1977, is the operable letter of credit. Plaintiff has proceeded on the assumption that the more detailed letter, Complaint, Exh. A and Bogert Affidavit, Exh. 3, is the applicable letter. The court is not troubled by this selection as Exh. 3 is more comprehensive and rigorous than Exh. 2. The only material differences are that paragraph 2 of Exh. 3 specifies that the certification is to be supplied by the plaintiff and paragraph 3 specifies the manner of payment, a term which was lacking in Exh. 2. Paragraph 3 of Exh. 3 is less favorable to plaintiff as it allows defendant to offset against the funds due plaintiff any partial or full payment from B.B.S. to plaintiff. As long as plaintiff voluntarily has chosen to abide by Exh. 3, a letter of credit which imposes upon plaintiff more rigorous and less favorable terms than those found in Exh. 2, the court has no problem finding that Exh. 3 constitutes the appropriate letter of credit.
There are a number of theories under which summary judgment for the plaintiff may be granted. The first theory requires *782 the determination of whether the April 22, 1977, letter of credit was revocable or irrevocable. U.C.C. § 5-103(1)(a) states that a letter of credit "may be either revocable or irrevocable." No indication is given how to construe a letter of credit which fails to indicate its revocability or irrevocability. However, comment 1 states:
Neither the definition nor any other section of this Article deals with the issue of when a credit, not clearly labelled as either revocable or irrevocable falls within the one or other category although the Code settles this issue with respect to the sales contract (Section 2-325). This issue so far as it effects [sic] an issuer under the Article is intentionally left to the courts for decision in the light of the facts and general law (Section 1-103) with due regard to the general provisions of the Code in Article 1 particularly Section 1-205 on course of dealing and usage of trade.
Certain legal consequences flow from categorizing a letter of credit as revocable or irrevocable. U.C.C. § 5-106(1)(b) provides that, unless otherwise agreed, a letter of credit is "established" as regards a beneficiary "when he receives a letter of credit or an authorized written advice of its issuance." Receipt by the beneficiary, not acceptance, is the pivotal action.[6] Once an irrevocable letter of credit is "established," unless otherwise agreed, as regards a beneficiary, it "can be modified or revoked only with his consent." U.C.C. § 5-106(2). Conversely, after a revocable letter of credit is "established," unless otherwise agreed, it "may be modified or revoked by the issuer without notice to or consent from the ... beneficiary." U.C.C. § 5-106(3). Therefore, if the April 22 letter of credit were revocable, defendant had statutory authority to revoke and hence dishonor it; however, if the letter were irrevocable, defendant lacked such authority.
As the district court commented in Beathard v. Chicago Football Club, Inc., supra, 419 F.Supp. at 1137, "(t)here is a dearth of case law on the question of what constitutes an irrevocable letter of credit." Some states have resolved this problem by appropriate legislation. For example, Fla. Stat. § 675.103 (1977) (U.C.C. § 5-103) requires a letter of credit to state whether it is revocable or irrevocable. Furthermore, the statute provides, "[I]n the absence of such statement [it] shall be presumed to be irrevocable." See Lewis State Bank v. Advance Mortgage Corp., 362 So. 2d 406, 409 (Fla.Dist.Ct.App.1978). Other states allow for reference to the Uniform Customs and Practices for Documentary Credits (hereinafter U.C.P.). New York, for example, is one of three states which added a subsection (4) to section 5-102, which reads:
Unless otherwise agreed, this Article 5 does not apply to a letter of credit or a credit if by its terms or by agreement, course of dealing or usage of trade such letter of credit or credit is subject in whole or in part to the Uniform Customs and Practice for Commercial Documentary Credits fixed by the Thirteenth or by any subsequent Congress of the International Chamber of Commerce.
N.Y. Uniform Com. Law § 5-102(4) (McKinney). Therefore, if the parties provide that a letter of credit is subject to the U.C.P., the U.C.C. does not apply. J. White & R. Summers, supra, § 18-3, at 612. Article One of the U.C.P. provides that "all credits, therefore, should clearly indicate whether they are revocable or irrevocable. In the absence of such indication, the credit shall be deemed to be revocable even though an expiry date is stipulated." Prior to the adoption of the U.C.C., New York case law provided that an ambiguous letter of credit was to be construed as irrevocable, *783 thus protecting the beneficiary. Laudisi v. American Exchange National Bank, 239 N.Y. 234, 146 N.E. 347 (1924). There is an interesting question concerning the extent to which the U.C.C. has replaced this prior law; White and Summers believes it has. "Now by virtue of the New York amendment to Article Five, it appears that the U.C.P. governs in New York and that the New York case law which would otherwise have dictated a different result has been superseded." J. White and R. Summers, supra, § 8-3, at 613. This could be true, however, only if the particular letter of credit specifies that only the U.C.P. applies, or both the U.C.C. and U.C.P., for the U.C.C. allows for reference to prior law if a situation or rule is not covered by the U.C.C., U.C.C. § 5-102(3) and comment 2. In Beathard v. Chicago Football Club, Inc., supra, the parties themselves stated that their letter of credit was "subject" to the U.C.P. In Beathard, plaintiffs were players for a new football team, the Chicago Winds, which arranged for payment of plaintiffs' salaries by a letter of credit with the Mid-City National Bank. The issuing bank failed to honor plaintiffs' drafts, stating that the credit had been revoked. The court ruled for the bank because, by incorporating the U.C.P. by reference, the players allowed the letter of credit to be construed as revocable, in the absence of any indication to the contrary. 419 F.Supp. at 1138.
The letter of credit here does not make any reference to the U.C.P., nor does the Connecticut version of the U.C.C. provide any guidance. White and Summers advise that the best way to ensure that a letter of credit will be construed as irrevocable is to state so explicitly,
Article Five does not state that letters of credit are presumed to be irrevocable, yet it is a rare beneficiary who will look with delight upon a revocable credit. If the letter of credit is silent, the answer to whether it is irrevocable depends on case law. Thus, for practical purposes, it would appear that a further formal requirement for the issuance of an irrevocable letter of credit is that it expressly state that it is irrevocable.
J. White and R. Summers, supra, § 18-4, at 616.
A situation similar to the instant case arose in West Virginia Housing Development Fund v. Sroka, supra, in which the customer, a developer and mortgagor, arranged for a letter of credit from the defendant issuing bank for the benefit of the plaintiff beneficiary, a mortgagor.[7] The defendant dishonored the letter of credit, arguing that the letter was revocable and had been revoked properly. The court granted summary judgment for the plaintiff, finding that a revocable letter of credit is "in reality, an illusory contract" because of the issuing bank's ability to revoke it without the beneficiary's knowledge or consent. 415 F.Supp. at 1111. Construing an ambiguous letter of credit as revocable would impede the "purpose and function" of such letters. Id. at 1112.[8]
This court finds the reasoning of the West Virginia case persuasive. The bank's role in a letter of credit is to facilitate commercial transactions between its customer and the beneficiary by creating an arrangement whereby the beneficiary seller can deal freely with the buyer without fear that payment will be withheld. A revocable letter of credit provides the beneficiary seller with little protection. Therefore, unless otherwise provided in the letter of credit itself, there should be a presumption in favor of irrevocability. The court finds the April 22, 1977, letter to be an irrevocable letter of credit. The credit was established upon its receipt, by plaintiff, U.C.C. § 5-106(1)(b), obviating the need for acceptance. Once an irrevocable letter of credit is established, the issuing bank cannot revoke or modify the letter without the beneficiary's consent, U.C.C. § 5-106(2). Therefore, the letter of credit here was still in effect when *784 plaintiff presented its draft to the defendant bank. The bank having dishonored the draft at that time, plaintiff's motion for summary judgment is granted.
Summary judgment for plaintiff is also appropriate under a theory that letters of credit are not formal contracts which mandate the standard contractual requirements of offer, acceptance, and consideration. Indeed, the definitional section, section 5-103(1)(a), defines a letter of credit as an "engagement" to honor drafts, not a "contract." Similarly, section 5-105 provides that no consideration is necessary to establish a letter of credit. White and Summers agree:
The obligations, particularly those of an issuer to a beneficiary, that arise under a letter of credit are not exclusively contractual in nature, and it is unfortunate that some of the Code comments suggest as much. It is true that the issuer's customer and the beneficiary will ordinarily have a contract, for instance, for the purchase and sale of goods, for the construction of a ship, or the like, and it is also true that the issuer and the customer will ordinarily have a contract between them whereby the customer pays a fee and the issuer issues the letter of credit. But the resulting letter of credit is not itself a contract, and the issuer's obligation to honor drafts drawn by the beneficiary is not, strictly speaking, contractual. The beneficiary does not enter into any agreement with the issuer.
J. White and R. Summers, supra, § 18-2, at 607. Therefore, under such an analysis, no acceptance is necessary, and hence defendant's argument fails.
Moreover, summary judgment may be granted for plaintiff even if a letter of credit is treated as contractual in nature. Several courts have applied general contract principles in construing the nature and terms of a letter of credit. E. g., Bank of North Carolina, N.A. v. Rock Island Bank, 570 F.2d 202, 207 (7th Cir. 1978); Venizelos, S.A. v. Chase Manhattan Bank, supra, 425 F.2d at 465-66; West Virginia Housing Development Fund v. Sroka, supra, 415 F.Supp. at 1112; New York Life Insurance Co. v. Hartford National Bank & Trust Co., supra, 173 Conn. at 497, 378 A.2d 562. One general proposition of contract law is that a construction that will make the letter valid and enforceable will be preferred to one that will defeat it. Bank of North Carolina, N.A. v. Rock Island Bank, supra, 570 F.2d at 207; Venizelos, S.A. v. Chase Manhattan Bank, supra, 425 F.2d at 465; West Virginia Housing Development Fund v. Sroka, supra, 415 F.Supp. at 1112. Another principle which courts have applied to letters of credit is to construe the words as strongly against the drafter, in most cases the issuer, as a reasonable reading will justify. Bank of North Carolina, N.A. v. Rock Island Bank, supra, 570 F.2d at 207; Venizelos, S.A. v. Chase Manhattan Bank, supra, 425 F.2d at 466, 467; West Virginia Housing Development Fund v. Sroka, supra, 415 F.Supp. at 1112.
Four contractual doctrines support granting summary judgment for plaintiff. One is the concept that in bilateral contracts, acceptance can be manifested in other than oral or verbal forms. Acceptance of an offer need not be express but may be shown by any words or acts which indicate the offeree's assent to the proposed bargain. Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Beech Aircraft Corp. v. Flexible Tubing Corp., 270 F. Supp. 548, 558-59 (D.Conn.1967). Likewise, under certain circumstances, where the offeree fails to reply to the offer, the offeree's silence and inaction may constitute an implied acceptance. Shulman v. Hartford Public Library, 119 Conn. 428, 433, 177 A. 269 (1933). Thus, it would not be unreasonable to find that plaintiff had accepted the terms of the April 22, 1977, letter, either by not immediately rejecting it, as it had done with respect to the April 4 letter, or by shipping the computer equipment and presenting the certification and draft to defendant. Similarly, the letter of credit can be construed as a unilateral contract, created when the promisor bargains only for an act, not for a return promise. *785 Only an act creates the obligation, as the promisee's performance, within a time specified in the contract or within a reasonable time, constitutes acceptance. Eaton Factors Co. v. Bartlett, 1 Conn.Cir. 376, 24 Conn.Supp. 40, 43, 186 A.2d 166 (App.Div. 1962). As a unilateral contract, the issuer would be the offeror and the beneficiary the offeree, who accepts by performing the underlying contract between the beneficiary and customer and by presenting the requisite documents to the issuing bank. Such was the case here. Moreover, the alleged "revocation" on February 16, 1978, was ineffective due to its tardiness. Although an offeror retains the right to revoke an offer, the revocation must be communicated to the offeree before he or she has accepted. L. & E. Wertheimer, Inc. v. Wehle-Hartford Co., 126 Conn. 30, 35, 9 A.2d 279 (1939); Lloyd & Elliott, Inc. v. Parke, 112 Conn. 504, 507, 152 A. 825 (1931); Frederick Raff Co. v. Murphy, 110 Conn. 234, 240, 147 A. 709 (1929); Jaybe Construction Co. v. Beco, Inc., 3 Conn.Cir. 406, 216 A.2d 208, 211 (App.Div.1965); Restatements of Contracts § 41 (1934). The attempted revocation occurred after plaintiff's "acceptance" of October 21, 1977, and thus was ineffective.
Lastly, a letter of credit can be analogized to a contract for a third party beneficiary. Some courts have made such a comparison:
A letter of credit is essentially a third party beneficiary contract. A party wishing to transact business induces a bank to issue the letter to a third party. It is a contract between the procuring customer and the issuing bank for the benefit of the payee-beneficiary. In the ordinary letter of credit situation, at the request of one of its customers a bank issues directly to a third party a promise to pay a sum of money on being furnished with certain documents.
Harvey Estes Construction Co. v. Dry Dock Savings Bank of New York, 381 F. Supp. 271, 274 (W.D.Okl.1974). See also West Virginia Housing Development Fund v. Sroka, supra, 415 F.Supp. at 1109-10; Savage v. First National Bank & Trust, supra, 413 F.Supp. at 451. The right of the third party beneficiary to maintain a lawsuit to enforce a contract was first established by the Connecticut Supreme Court in Baurer v. Devenis, 99 Conn. 203, 121 A. 566 (1923), where the third party beneficiary was a creditor. However, in Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 75 A.2d 507 (1950), the Supreme Court refused to adopt Williston's and the Restatement's categorization of third party beneficiaries into three groups: donee beneficiaries, creditor beneficiaries, and incidental beneficiaries. 137 Conn. at 200-02, 75 A.2d 507. Instead, the court declared that the final test is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party. Here, the issuing bank is the promisor and the customer is the promisee; the very nature of a letter of credit imposes a direct obligation upon the issuing bank, so that the intent to benefit the beneficiary is clear, as the terminology itself suggests. No express assent or formal acceptance by the beneficiary of a third party beneficiary contract is necessary; it is sufficient that the beneficiary knows of the contract and accepts it when he or she begins an action to enforce it. Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333, 339, 143 A. 163 (1928); Baurer v. Devenis, supra, 99 Conn. at 213, 121 A. 566; 17 Am.Jur.2d, Contracts § 314, at 742 (1964).
In addition, general equity principles compel summary judgment for plaintiff. U.C.C. § 5-102(3) acknowledges that a judge may need to reach beyond Article 5 to solve a letter of credit problem. Comment 2 to § 5-102 advises:
The rules embodied in the Article can be viewed as those expressing the fundamental theories underlying letters of credit. For this reason the second sentence of subsection (3) makes explicit the court's power to apply a particular rule by analogy to cases not within its terms, or to refrain from doing so.
Section 5-104, comment 1 also provides, "Questions of mistake, waiver or estoppel *786 are left to supplementary principles of law."
The Fifth Circuit utilized the equitable doctrine of waiver in Barclays Bank D. C. O. v. Mercantile National Bank, supra, 481 F.2d at 1237. The equitable doctrine of estoppel has been applied to letter of credit situations in this district, U. S. Industries v. Second New Haven Bank, supra, 462 F.Supp. at 665-66, where the seller-beneficiary shipped its goods and thereafter presented its demand draft with accompanying documents on the expiration date of the letter of credit. An officer of the defendant-issuing bank assured the plaintiff's controller that, if there were any defects in the documents, he would contact him. Later that day, defendant's officer discovered "minor discrepancies" in the documents and, upon contacting the buyer-customer, learned that the buyer-customer did not want the drafts honored if there were actual inconsistencies with the terms of the letter of credit. Two days later, defendant notified plaintiff that it was dishonoring the draft. Judge Daly granted judgment for the plaintiff, finding that the documents were in substantial compliance with the letter of credit and that the defendant had been estopped from denying payment:
In the present case, the plaintiff, based on the defendant's assurances, reasonably assumed that the defendant would honor its obligation under the letter of credit. Since the plaintiff acted in reliance and to its detriment, the defendant is estopped from asserting any defense it may have had concerning nonconformity of the documentary demand for payment without calling the discrepancy to the attention of the plaintiff prior to the expiration of the letter of credit. This situation, taken together with the fact that the goods concededly were sent and were received, leads this Court to the equitable conclusion that payment should be made pursuant to the letter of credit. ...
Id. at 666. See also Lewis State Bank v. Advance Mortgage Corp., supra, 362 So.2d at 410 (customer which acquiesced in extension of irrevocable letter of credit cannot later protest that extension was made without its consent.) The court's analysis in U.S. Industries seems applicable here for the plaintiff had supplied the computer equipment and then presented its draft and documents to the defendant. Nearly four months later, defendant advised plaintiff for the first time that it would not honor the draft. Furthermore, defendant had six months to notify plaintiff that it intended to revoke the letter of credit, but failed to give plaintiff any indication to that effect. Plaintiff acted in reliance and to its detriment. By allowing plaintiff to rely upon the letter of credit for such a lengthy time, even after the equipment was supplied and the draft presented, defendant is estopped from denying its responsibility under the letter of credit.
The last issue to be resolved is defendant's claim that the assignment of funds from B.B.S., the customer, to defendant, the issuing bank, was a condition of the letter of credit. The letter of credit, dated April 22, 1977, began, "Based on Assignment of Funds to us by the subject and originating from the Town of North Haven, this Bank hereby commits to honor your draft...." Bogert Affidavit, Exh. 3; Lawrence Affidavit, Exh. A; Complaint, Exh. A. While it is true that a beneficiary must comply with the conditions specified in a letter of credit, courts have construed letters of credit with a liberal eye in favor of the beneficiary. Such was the situation in three cases in which a mortgagor for a building complex (the customer) procured a letter of credit from a bank for the benefit of the mortgagee (the beneficiary). For example, in Pringle-Associated Mortgage Corporation v. Southern National Bank of Hattiesburg, supra, the plaintiff corporation, Pringle-Associated Mortgage Corporation, loaned $1,275,000 to a corporation, Gautier Gardens, Inc., for the construction of apartment buildings, in exchange for which Pringle obtained a mortgage on the buildings. Plaintiff further required Gautier to obtain an irrevocable letter of credit in plaintiff's favor for $250,000. This figure was beyond the ceiling allowed for local *787 banks, and thus separate letters of credit were obtained from the First Mississippi National Bank of Hattiesburg and the defendant, Southern National Bank of Hattiesburg. The letter of credit with the defendant provided that "this letter of credit is to be drawn upon only after the credit extended under a letter of credit issued on the same project by First Mississippi Bank of Hattiesburg, Mississippi in the amount of $125,000 has been exhausted." Pringle presented its draft to the defendant bank, which dishonored the draft for failure to provide evidence that the First Mississippi National Bank's letter of credit had been exhausted. The next day Pringle returned to defendant with a cashier's check issued by First Mississippi National Bank in accordance with its letter of credit, but the defendant again refused to honor the draft. Defendant argued, and the district court agreed, that the exhaustion provision meant that the funds from the First Mississippi Bank must have been expended in the construction of the apartments. The Fifth Circuit reversed, holding that such a construction implicitly made reference to the underlying contract, which is irrelevant in construing a letter of credit:
Read without reliance upon the [underlying mortgage] contract, the word "exhaustion" can mean only that all of the funds available under First Mississippi's letter of credit must have been withdrawn.
571 F.2d at 865. Thus, the appellate court refused to read into the letter of credit conditions which relied upon the underlying contract between the customer and beneficiary and which were to the detriment of the beneficiary.
A similar interpretation was reached in Lewis State Bank v. Advance Mortgage Corporation, supra, where a partnership, Warrington Village Apartments, Ltd., received a loan from Advance Mortgage Corporation for $2,789,500 for the construction of an apartment complex, secured by a mortgage. This construction loan was insured by the United States Department of Housing and Urban Development [HUD], which required that the mortgagor deposit with the mortgagee 2% of the face amount of the loan as a "working capital deposit." Warrington made this deposit of $55,790 but later requested that a letter of credit be substituted instead. HUD agreed to the substitution as long as an irrevocable and unconditional letter of credit was issued by a banking institution. The plaintiff, Lewis State Bank issued the credit for $55,790 for the benefit of Advance and Advance then returned the cash deposit to Warrington. Prior to the expiration of the letter of credit, Advance informed Warrington, the customer, and Lewis State Bank, the issuing bank, that Advance would present a sight draft unless the letter of credit were extended. Lewis State Bank agreed to extend the credit for an additional six months but stated that it was incorporating into the original letter of credit certain provisions that no draws be made for anything other than working capital, as defined by correspondence from Advance to Lewis State Bank. Several days later Advance sent a letter to the bank in which it defined working capital. Warrington thereafter defaulted on its loan to Advance, prompting Advance to present its draft to the issuing bank. The bank refused to honor the draft without additional information as to the use of the funds. When this information was provided, Lewis State Bank honored the draft for $55,790. The bank then sued Warrington on a promissory note for $55,790 and Warrington impleaded Advance. The bank also filed a claim against Advance for unjust enrichment by failing to comply with the "working capital" terms of the letters exchanged at the time the bank extended the letter of credit. The trial court granted summary judgment for Advance, and the appellate court affirmed, on the grounds that the Lewis State Bank could not impose new conditions on the letter of credit but rather merely had extended the original credit. Moreover, the courts found that the correspondence relating to "working capital" was meant to "define and explain" that term and did not change the original irrevocable and unconditional letter of credit into a conditional one. 362 So.2d at 408, 410.
*788 The district court was faced with a similar situation in West Virginia Housing Development v. Sroka, supra, where the plaintiff, West Virginia Housing Development, a government agency, executed a loan for $3,317,500 to a partnership, Bridgeport Gardens Associates, of which Sroka was a partner, to build a low-cost housing development, which was secured by a mortgage. This loan was insured by HUD, which, as in Lewis State Bank, supra, required the mortgagor either to deposit a percentage of the loan with the mortgagee as working capital or to procure an irrevocable and unconditional letter of credit in favor of the mortgagee. United States National Bank issued such a letter of credit for $66,350, which provided, inter alia, "Applicant [Sroka] informs us that this letter of credit relates to working capital funds for the captioned project." Following default by Bridgeport Gardens, HUD paid the plaintiff the outstanding balance minus the amount of the letter of credit. Plaintiff thereafter presented a sight draft to the issuing bank, which dishonored the draft. Plaintiff brought suit against Sroka and the partnership, the bank, and HUD, for payment of the $66,350. The defendants argued that a condition precedent to payment under the letter of credit was the need for working capital. The court disagreed, granting summary judgment against the bank for $66,350 for several reasons. As in Pringle, supra, the court stated that the defendants' proposed construction made the letter of credit dependent upon the underlying contract, which in turn would alter drastically the bank's obligations. 415 F.Supp. at 1112. And like the court in Lewis State Bank, supra, the reference to working capital did not "create a condition and merely [was] a recital of the reason the letter of credit was requested." Id. Finally, the court utilized the doctrine that documents are to be construed against the drafter, here the issuing bank, as strongly as a reasonable reading will justify. This doctrine "militates against reading conditions into the bank's obligations." Id.
The analysis of these three opinions leads the court here to find that the opening sentence of the April 22, 1977, letter of credit was not a condition precedent to defendant's obligation to honor a draft which complied with the letter of credit. As the Pringle and West Virginia Housing Development cases observed, such a construction would require a court to consider the underlying sales transaction, a task which is clearly beyond the court's scope of review. Secondly, like the courts in Lewis State Bank and West Virginia Housing Development, this court finds that the purpose of the reference to B.B.S. and the Town of North Haven was merely to explain the reason for issuing a letter of credit. Lastly, as in West Virginia Housing Development, general rules of construction dictate that words be construed against the issuer, here the defendant. The drafter clearly provided three numbered conditions to honoring the draft, all of which plaintiff observed. The language which defendant urges as a further condition is most logically construed as a statement of the consideration passing from the customer to defendant for the issuance of the letter. The court will not read into a letter of credit conditions which burden the beneficiary and over which the beneficiary has no control.
Furthermore, an issuing bank's duty to a beneficiary is unrelated to the relationship between the bank and its customer. If a bank issues a letter of credit without first securing funds from its customer, as the defendant implies here, the beneficiary should not be prejudiced by the bank's deliberate inaction or inadvertence. When an issuing bank is compelled to make payments to a beneficiary under a letter of credit, the bank is not necessarily defenseless, for it is "left to whatever remedies it may have against [its customer]." U. S. Industries v. Second New Haven Bank, supra, 462 F.Supp. at 666. And as the Third Circuit observed in Chase Manhattan Bank v. Equibank, 550 F.2d 882, 886 (3d Cir. 1977), "The possibility that the issuer may not be able to recover from the customer, however, does not bar the beneficiary in his suit against the bank."
*789 Accordingly, summary judgment is granted for plaintiff. The amount of recovery is governed by U.C.C. § 5-115(1), which provides in pertinent part:
When an issuer wrongfully dishonors a draft or demand for payment presented under a credit the person entitled to honor has with respect to any documents the rights of a person in the position of a seller as defined in section 42a-2-707 and may recover from the issuer the face amount of the draft or demand together with incidental damages under section 42a-2-710 on seller's incidental damages and interest but less any amount realized by resale or other use or disposition of the subject matter of the transaction.
U.C.C. § 2-710 in turn provides in full:
Incidental damages to an aggreived seller include any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer's breach, in connection with return or resale of the goods or otherwise resulting from the breach.
As a general rule, attorney's fees are not recoverable as part of the damages unless specifically allowed by statute or contract. State v. Bloomfield Construction Co., Inc., 126 Conn. 349, 359, 11 A.2d 382 (1940); Theodore D. Bross Line Construction Corp. v. Ryan Crane Service Corp., 32 Conn.Supp. 181, 182, 345 A.2d 594 (Super.Ct.1975). Attorney's fees are not mentioned as recoverable damages under U.C.C. §§ 5-115(1) and 2-710, nor are they mentioned in the April 22, 1977, letter of credit. Therefore, plaintiff's request for attorneys fees is denied. However, plaintiff is entitled to interest under § 5-115(1), which interest begins to accrue from the date of the breach, not from the date of the contract, Loomis v. Norman Printers Supply Co., 81 Conn. 343, 349-50, 71 A. 358 (1908). The date of the breach here is February 16, 1978, when defendant dishonored the letter of credit. Both the April 22, 1977, letter of credit and U.C.C. § 5-115(1) require deduction for any amounts previously received by plaintiff. Therefore, plaintiff is entitled to $82,070.50 less any payments directly received by plaintiff from B.B.S. pursuant to B.B.S. purchase order # TNH-01, dated December 12, 1976, plus interest, accruing from February 16, 1978.
SO ORDERED
NOTES
[1] The April 4, 1977 letter, Bogert Affidavit, Exh. 1, and one April 22, 1977 letter, Bogert Affidavit, Exh. 2, refer to "Town of North Haven purchase order No. 12991, dated 3/2/77," whereas the other letter of April 22, Bogert Affidavit, Exh. 3; Lawrence Affidavit, Exh. A; Complaint, Exh. A, refers to "B.B.S. Systems purchase order # TNH 01, dated 12/12/76." However, all three documents begin with the caption "Re: B.B.S. Systems Inc./Reference # 4477b." The court assumes that all three letters refer to the same underlying transaction between B.B.S. and plaintiff.
[2] The text of this letter read in full:
This letter is to certify that all the equipment supplied by Data General Corporation as called for in BBS Systems purchase order # TNH 01 has satisfactorily completed the running of the Data General standard diagnostic test.
I am also enclosing a draft in the amount of $82,070.50 for payment of invoices which were billed for subject equipment. Should there be any problem in making payment against this draft, please contact me immediately. Thank you in advance for your cooperation in this matter.
[3] The body of this letter read in full:
Reference is made to Data General Corporation's letter of October 21, 1977 to Citizen's National Bank of Fairfield and to the accompanying sight draft dated October 20, 1977 in the amount of $82,070.50.
So that there can be no misunderstanding of Citizen's National Bank of Fairfield's position, this is to advise that Citizen's National Bank of Fairfield denies any liability to Data General Corporation as a result of Data General Corporation's dealings with BBS Systems and specifically denies any obliation [sic] to make payment against the October 20, 1977 sight draft.
Curiously enough, although the letter is dated February 16, 1978, the receipt stamp of plaintiff's credit department is dated January 23, 1978. Because defendant has not contested the authenticity of this letter, the court assumes that the receipt stamp was inadvertently misdated.
[4] The Connecticut version of Article 5 has been construed by courts on three different occasions, Okay Industries, Inc. v. Continental Bank of Harvey, Civil No. H78-342 (D.Conn. June 18, 1979), reprinted in 5 Conn.L.T., No. 34, at 9, col. 1 (Aug. 20, 1979); U.S. Industries v. Second New Haven Bank, 462 F. Supp. 662 (D.Conn. 1978); New York Life Insurance Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 378 A.2d 562 (1977).
For convenience purposes, throughout the remainder of this memorandum of decision, specific provisions of the Connecticut U.C.C. will be referred to as "U.C.C. § ___," rather than "Conn.Gen.Stat. § 42a ___."
[5] Two different standards have developed: if the beneficiary sues an issuing bank for dishonoring a draft drawn pursuant to a letter of credit, "strict compliance" with the terms of the credit is required; however, if a customer sues an issuing bank for dishonor, all that needs to be proven is "substantial compliance." Far Eastern Textile, Ltd. v. City National Bank & Trust, 430 F. Supp. 193, 196 (S.D.Ohio 1977); Marine Midland Grace Trust Co. v. Banco del Paris, S.A., 261 F. Supp. 884, 889 (S.D.N.Y. 1966).
[6] 50 Am.Jur.2d, Letters of Credit, § 12, at 408 begins: "A letter of credit is not binding without acceptance, express or implied. Such acceptance must be given within the time limited and in the manner prescribed by the letter, and upon acceptance the issuer is obligated to pay in accordance with its terms on presentation of the specified documents." (footnotes omitted). However, the section later adds: "... an irrevocable letter ... is a contract to pay upon compliance with its terms and needs no formal acknowledgement or acceptance other than what is therein stated." Id. at 409.
[7] This case is discussed in greater detail at p. 788 of this memorandum of decision.
[8] In reaching this decision, the court also relied upon general rules of construction for contracts. See pp. 784 785 infra.
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502 F. Supp. 1118 (1980)
THREE RIVERS CABLEVISION, INC., and Matthew Moore, Plaintiffs,
v.
CITY OF PITTSBURGH and Warner Cable Corporation et al., Defendants.
Civ. A. No. 80-334.
United States District Court, W. D. Pennsylvania.
November 12, 1980.
*1119 Harold R. Schmidt, Pittsburgh, Pa., for plaintiffs.
Richard H. Martin, Joan P. Feldman, Marvin A. Fein, Associate City Sol., Virginia Cook, Asst. City Sol., Mead Mulvihill, Jr., City Sol., Pittsburgh, Pa., for defendants.
OPINION
DIAMOND, District Judge.
This litigation arises out of the award by the city of Pittsburgh (city) of a cable television contract for which several companies, including plaintiff Three Rivers Cablevision, Inc. (Three Rivers), were bidding. Plaintiffs, Three Rivers and one Matthew Moore, a party to a stock subscription agreement by which he would have become a shareholder of Three Rivers if the latter had been awarded the aforesaid contract, filed this suit under 42 U.S.C. § 1983, § 1985, and the Fifth and Fourteenth Amendments of the United States Constitution alleging that they were the victims of various civil rights deprivations committed during the bid procurement and award process. A pendent state law claim is also asserted. Named as defendants are Warner Cable Corporation of Pittsburgh (Warner), the company to which the contract was awarded, and a group of defendants *1120 consisting of the city, the city council (council), and the mayor and eight of the nine individual members of city council sued in their representative capacity (municipal defendants).
Plaintiffs' primary complaint is that as a result of a preconceived and unlawful preference, Warner was awarded the contract despite material deficiencies in its bid. In count I plaintiffs allege that this conduct violated their Fifth and Fourteenth Amendment rights to due process and equal protection of the laws as well as certain provisions of Pennsylvania law which require that contracts of this type be awarded to the lowest responsible bidder, 53 P.S. § 23301 and Article V § 3 of the City Home Rule Charter. In addition to the alleged deficiencies in the Warner bid, plaintiffs also claim that certain bid specifications designed to encourage minority involvement in bidding companies and which allegedly were the sole basis for the city's selection of Warner over the other bidders, were so conflicting, vague, and indefinite as to violate plaintiffs' right to due process and equal protection.
Presently before the court are separate motions to dismiss filed by both the municipal defendants and Warner. The bases for these motions, which are varied, sometimes complex, and often overlapping and redundant, are more fully detailed later herein. For the reasons set forth below, the court will grant the motions with regard to count I insofar as they seek dismissal for failure to state a claim under § 1985(3), the Fifth Amendment, and the Fourteenth Amendment, and with regard to count II insofar as the municipal defendants seek partial summary judgment. In all other respects the motions will be denied.
I. FACTUAL BACKGROUND
When considering motions to dismiss we must take as true the well-pleaded allegations of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Lasher v. Shafer, 460 F.2d 343 (3rd Cir. 1972). Those allegations pertinent to the instant matters now before us may be summarized as follows.
Following a review of separate reports prepared by one of its subcommittees and a privately retained expert consultant, council decided to solicit bids for a cable television system for the city. Council began with the adoption of Ordinance No. 20 entitled "Cable Communications Ordinance" (CCO). The principal purpose of the CCO was to regulate the construction, operation, and maintenance of a cable television system in the city by contract with a franchisee, and thus it provided the basic contract terms and specifications to be met by prospective bidders. In July of 1979 the city's Department of Public Works formally solicited bids by issuing a Request for Proposals (RFP). Among other things, the RFP provided that all bids must meet the construction and service specifications set forth in the CCO and that all bidders submit their bids to the city no later than October 1, 1979. In meetings with officials of the city solicitor's office and the Bureau of Cable Communications, a sub-division of the city's Department of Public Works, the prospective bidders were advised emphatically that all bids must comply in every detail with the CCO and that under no circumstances would opportunities for amendment be provided. The CCO as well as the RFP provided that any bid which failed to furnish any information required thereunder would be rejected without further consideration.
By the deadline of October 1, 1979, the city had received bids from four companies: Three Rivers, Warner, Community Cablevision, and Allegheny Cablevision, Inc. All four bids, however, were rejected on that day for failure fully to comply with the CCO. In this regard, plaintiffs allege that while Three Rivers' noncompliance related to a "technical requirement" concerning a surety bond, Warner's ". . . proposal was grossly deficient and did not comply in material and significant respects with the Cable Communications Ordicance (sic)." (¶¶ 27, 28 of plaintiffs' complaint). The four companies which had submitted timely bids were then given until October 25, 1979, to submit new proposals. Again the bidders *1121 were admonished by the Bureau of Cable Communications and the city solicitor that no amendments would be permitted.
Plaintiffs then allege that Three Rivers' second proposal fully complied with the CCO and RFP, whereas Warner's again contained several material deficiencies. Thereafter, beginning in November of 1979, certain unidentified employees of the Bureau of Cable Communications allegedly held private meetings with Warner, the effect and purpose of which were to provide Warner with an unfair advantage over the other bidders by advising Warner of the deficiencies in its second bid so that it could correct them by amendment. Subsequently, Warner was permitted to correct at least one of these deficiencies which, according to plaintiffs, was as significant as the technical one for which the initial proposal of Three Rivers was rejected.
On January 30, 1980, council by a vote of 8-1, passed a resolution authorizing the award of the contract to Warner. Plaintiffs contend that this action was in complete disregard of the recommendation made by the two bodies charged with submitting bid evaluations to council, the Bureau of Cable Communications and the Cable Communications Advisory Committee, that the contract be awarded to Three Rivers. In addition, plaintiffs complain that the resolution completely ignored the fact that Warner's proposal still contained disqualifying deficiencies. Plaintiffs further allege that the award of the contract to Warner was in fact the result of a preconceived plan to favor Warner and to make a sham of the entire bidding process. And finally, plaintiffs assert that the city's sole proffered reason for the selection of Warner; viz, its supposedly superior program for minority involvement, is infirm since the specifications regarding that program were unconstitutionally vague and conflicting.
Defendants seek dismissal of the complaint on various grounds. They challenge counts I and II, the constitutional claims, under Rule 12(b)(1), (6), and (7), Fed.R. Civ.P., for lack of subject matter jurisdiction, failure to state a claim, and failure to join persons needed for just adjudication under Rule 19. In support of both the 12(b)(1) (subject matter jurisdiction) and 12(b)(6) (failure to state a claim) bases for dismissal, the defendants contend that plaintiffs 1) lack standing to assert the constitutional claims raised; 2) had no recognized due process or equal protection interest at stake; 3) have failed to plead that the deprivations allegedly visited upon them were, in the municipal defendants' case, done pursuant to some official policy or, in Warner's case, under color of state law; 4) have failed to plead their constitutional claims with sufficient specificity; 5) have failed to state causes of action under § 1985, and the Fifth and Fourteenth Amendments; 6) are in any event entitled to no relief because of defendants' absolute legislative immunity.
In support of their 12(b)(1) argument, defendants invoke the doctrine of abstention and contend that the court should refuse to entertain this case. As to the 12(b)(7) motion, defendants maintain that the two remaining bidders on the instant contract, Community Cablevision and Allegheny Cablevision, Inc., are indispensable parties whose absence on the record necessitates dismissal of the case. The defendants have moved to dismiss count III, the pendent state claim, on the ground that since plaintiffs have failed to state viable constitutional claims under counts I and II, the state law claim must be dismissed for lack of jurisdiction.
Many of these grounds obviously are redundant or overlapping, particularly where they are raised in support of both the failure to state a claim and the lack of subject matter jurisdiction bases. Therefore, while ultimately we shall deal with the substance of all of defendants' points, we have framed the questions in broad comprehensive categories and have not attempted to respond seriatim to the issues as expressed by the defendants in their motions or briefs. Accordingly, we discuss the abstention question in Part II, in Part III we deal with the various dismissal bases as they relate to the *1122 count I claim regarding the alleged deficiencies of Warner's bid, and in Part IV we dispose of the dismissal bases as they relate to the count II claim dealing with the allegedly vague and conflicting minority involvement specifications.
II. ABSTENTION
The threshold question before us is one of abstention. The defendants urge that we decline to entertain this suit because it raises difficult and unsettled questions of state law and that the controversy is of such unique local concern that the state courts are a more proper forum for its resolution. We decline to abstain.
Our analysis commences with the premise that "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule," Colorado River Water Conservation District v. U. S., 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), and that the doctrine should be invoked "only in exceptional circumstances where the order to the parties to repair to State court would clearly serve an important countervailing interest." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959). The courts which have ordered abstention usually have done so on one of three grounds, two of which are relevant here: 1) that there exists an unsettled question of state law, the resolution of which by state courts would make unnecessary, or substantially affect, the ultimate resolution of a federal constitution issue, or 2) that the controversy involves an issue of unique state concern having broad policy implications.[1] These two types of abstention are sometimes referred to by the names of the cases from which they were cast, Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), and Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943), respectively. Accordingly, we shall examine the instant dispute in terms of Pullman and Burford-type abstention.
In Pullman the petitioner and certain railroad companies obtained a lower court injunction enjoining the Texas Railroad Commission from enforcing one of its orders relating to the assignment of porters on sleeping cars. The order was objected to on constitutional and state law grounds. Without reaching the federal constitutional issue, the district court found that the order was invalid on state law grounds; viz., that the Commission lacked the authority under local law to issue it. The Supreme Court reversed, holding that because the case could be decided on state law grounds and the relevant state law was subject to conflicting interpretations the district court should have stayed its hand while the parties petitioned the readily available state court for an authoritative ruling. Otherwise, said the Court, depending on its ruling regarding the state law question, the district court not only could be adjudicating prematurely a constitutional issue, but also might be rendering an unnecessary forecast of state law which could thereafter be supplanted by an authoritative ruling.
Pullman-type abstention has been invoked often by the Court. See cases at Wright & Miller, Federal Practice and Procedure (Wright & Miller) Civil § 4241 n.24, and 1A Moore's Federal Practice, (Moore) p. 2103 at n. 8. It also has been applied by the Third Circuit, which in D'Iorio v. County of Delaware, 592 F.2d 681 (3rd Cir. 1978) held that abstention was required where uncertainty existed under state law as to *1123 whether plaintiff had tenure rights in his job and, therefore, whether he had a Fourteenth Amendment property interest in the position.
There are two essential prerequisites to the application of the Pullman doctrine: 1) the existence of an unsettled question of state law, and 2) the likelihood that an alternative construction of that law will make unnecessary, or substantially affect, the ultimate resolution of a federal constitutional question. Colorado River, supra, 424 U.S. at 814, 96 S.Ct. at 1244-1245, and 1A Moore ¶ .203[1].[2] In regard to the latter requirement, it has been said that the state law normally must be so uncertain as to be "fairly subject" to differing interpretations. Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971); Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). In total, the Pullman doctrine is a carefully molded accommodation of three fundamental jurisprudential principles; namely, that a federal court is obliged to resolve cases which are properly before it; that decisions on constitutional bases should be avoided when possible; and that friction between the state and federal systems should be minimized. 1A Moore ¶ .203[1].
Applying the Pullman doctrine to the instant case, we conclude that abstention on that basis is not appropriate. Neither the defendants' brief nor our independent examination of the issues and research of the law convinces us that this case presents novel and unresolved questions of Pennsylvania law. As set forth more fully below,[3] the state law with regard to the awarding of governmental contracts is quite clear: the contract must be awarded to the lowest responsible bidder, and in determining who in fact is the lowest responsible bidder the awarding authority must exercise its discretion in a non-arbitrary fashion.
The municipal defendants suggest as an area of uncertainty a refinement of the law relating to public contracts; that is, the degree of non-compliance with contract specifications which a bid must evidence before it will be deemed so materially defective as to warrant rejection. We disagree that this raises a question of uncertain state law, for it appears to us that it is resolved with relative certainty. If plaintiffs prove their allegation that, either as a result of some language in the specifications or because of discussions had with city officials, all bidders were informed that to avoid rejection they must comply with even the most minute details of the CCO and RFP specifications, then the standard for rejection is quite specific and definitive. If plaintiffs fail so to prove, then the general rule would apply, and non-compliance would cause rejection only if it was of such a degree as to render the bid "non-irresponsible," Cf. Book v. Hall, 339 Pa. 470, 15 A.2d 355 (1940), and that too presents a reasonably certain standard.
Finally, the defendants argue in support of Pullman abstention that the state courts never have been given an opportunity to pass upon the question of who was the lowest responsible bidder here. This contention fundamentally misconceives the nature of the principles underlying abstention. The issue in an abstention case is not so much whether the dispute can be resolved in a state forum (assuming one is available), but rather whether for some special reason a federal court cannot, or should not, resolve it. Cf. Wright & Miller: Civil § 4242 and cases at n. 26. And the special reason that must be present, the sine qua non of Pullman abstention, is an uncertain issue of state law. 1A Moore p. 2106. No such uncertainty having been established here, we deny the request for Pullman abstention and need not reach the secondary question of whether a state court ruling on uncertain issues might substantially affect or render *1124 unnecessary the resolution of federal constitutional questions.
We consider now the second general type of abstention relevant to the instant case, the so-called Burford abstention. In Burford the Supreme Court ruled that abstention was properly invoked where an oil company attacked on constitutional grounds the validity of a Texas Railroad Commission order permitting Burford to drill oil wells in an approximately 280 sq. mile oil tract or "pool." The Court so ruled because the controversy directly implicated the formulation of broad economic and social policy of that state. Specifically, the Court alluded to the profound impact of oil production and allocation on the economy and the conservation efforts of the state; the geologically-based necessity of regulating single wells only vis-a-vis an entire pool; and the state's decision, therefore, to establish a special judicial network whereby all matters of this nature would be brought first before the Commission and thereafter appealed to a specially designated state district court. Under these circumstances the Court held that to retain control of the dispute in a federal court, with its comparative lack of expertise and its likelihood of rendering a judgment inconsistent with prior or future state pronouncements, would upset the carefully structured attempt of Texas to deal wisely and uniformly with a matter of basic state policy.
Burford-type abstention also has been invoked by the Court where a party attacked a state regulatory order regarding cessation of railroad service. In that case the Court found that abstention was proper since the state had established a special state-wide review process to resolve the "essentially local problem" of regulating intrastate transportation service, which required one to balance the needs of the public against the economic interests of the railroad. Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1951). The Third Circuit also has sanctioned abstention on this ground in an action by an airline to enjoin enforcement of a state public utility commission rule requiring it to obtain commission approval prior to discontinuing certain flights. Allegheny Airlines, Inc. v. Pennsylvania Public Utility Commission, 465 F.2d 237 (3rd Cir. 1972). The basic rationale in Allegheny Airlines was that the controversy involved state-wide transportation matters which the Pennsylvania Public Utility Commission had the responsibility to regulate in the public interest, and that to reach the merits of the airlines' contention while the airline refused to re-institute service might throw the state into chaos by encouraging other airlines to follow suit. Conversely, in a diversity action in assumpsit to recover payment for the sale of milk, this Circuit refused to order abstention where referring the matter to the state milk marketing board would further no Burford interest. Specifically, the court noted that the suit involved nothing within the special discretion or expertise of the state board; that it did not involve the formulation of state policies; that it did not interfere with a matter presently before the board; and that it was essentially a dispute between two private parties. Baltimore Bank, Etc. v. Farmers Cheese Corporation, 583 F.2d 104 (3rd Cir. 1978).
The principal element in Burford abstention is the implication of state interests, and in Colorado River, supra, one of its more recent decisions in the area, the Court indicates how very substantial the effect of federal court action thereon must be to invoke Burford abstention. The Colorado River case involved an action by the United States seeking a declaration of its rights under federal and state law in certain Colorado rivers and streams. Despite the Court's recognition that probably "no problem of the Southwest section of the Nation is more critical than that of the scarcity of water," 424 U.S. at 804, 96 S.Ct. at 1239; that Colorado had specifically established an elaborate regulatory scheme for adjudication of water rights disputes; that the United States itself had utilized said scheme in the past; and that the water rights established under federal law might conflict with those prevailing under state law, the Court held that state interests *1125 were not sufficiently implicated to justify abstention.[4] As Professor Moore states, Colorado River, when compared with the earlier holding in the less, or at best equally, compelling case of Southern Railway, supra, makes it clear that Burford-type abstention is proper "only when there are truly exceptional circumstances 1A Moore p. 2130. At the very least, it suggests that the Court is becoming less receptive to pleas for abstention on that basis.
Applying Burford and its progeny to the case at bar, we conclude again that abstention is inappropriate. There are material distinctions between the instant case and those in which the courts have invoked the Burford doctrine. First, and perhaps most conclusively, this case lacks the crucial element of Burford abstention that the controversy be one "whose importance transcends the result in the case at bar," by reason of its effect on state policy in an area of substantial public concern. Colorado River, supra, at 814, 96 S.Ct. at 1244-1245. Here, unlike Burford and Allegheny Airlines, where a state's entire policy regarding oil production and air transportation respectively were at issue, the defendants point to no particular state-wide policy or program which has been drawn into question. As important as it may be locally, this controversy appears simply to have no material impact on any matter beyond the installation of cable television in the City of Pittsburgh, and if the converse be true, the defendants certainly have not established it.[5]
Another basic difference between the case sub judice and Burford, Southern Railway, and Allegheny Airlines, lies in the fact that Pennsylvania has created neither a public agency to deal particularly with the regulation of cable television service nor a special system of judicial review for those *1126 allegedly aggrieved by governmental action regarding such service.[6] We recognize that creation of such bodies is not an absolute prerequisite to the establishment of Burford abstention, See Wright & Miller: Civil § 4244, but it is an additional indication that to this point the state itself has not viewed the regulation of cable television systems as a matter of general public concern or one which requires the expertise of a specialized regulatory agency.
In the final analysis, it appears that the defendants' argument for abstention rests almost exclusively on the fact that the installation of this system is a matter of keen public interest. But the gravamen of Burford abstention is the implication of public policy, which is, of course, to be distinguished from public interest. The defendants have failed to identify any legitimate and substantial public policy at issue here, nor is the court able to perceive any such considerations which exceed or even equal the seemingly substantial ones considered but deemed insufficient in Colorado River. Thus, is not a "truly extraordinary" situation calling for the exceptional remedy of abstention.
There is an additional factor, though less significant than those considered above, which militates against abstention on either Pullman or Burford grounds. That is the matter of undue delay. See cases at Wright & Miller: Civil § 4242 n.49.
Under the terms of the CCO, the franchisee is obligated to proceed with construction and installation of the system according to a rather detailed time table, and § 8.1(f) of the franchise agreement executed by Warner and the city specifies that "any litigation instituted by a third party shall not suspend franchisee's obligation to construct and install the system in accordance with the [said] time schedule . . . ." If Warner is engaged in construction and installation work, it is fair to assume that should the contract be declared void that some of that work will have been wasted. In addition, Three Rivers claims that it may be irreparably prejudiced by Warner's ongoing installation efforts.[7]
Thus, the longer the resolution of this matter is delayed, the greater the potential harm to both companies and the public. In view of the fact that no state proceeding has yet been commenced, it is likely that our abstention would delay the ultimate disposition of this case for more than an immaterial period. If this was the only matter weighing against abstention, it would not be sufficient, but in conjunction with the other bases which we have expressed, the matter of prejudicial delay is further support for our belief that abstention is wholly inappropriate.
Accordingly, the request that this court abstain while plaintiffs pursue remedies that may be available in the state courts will be denied.
III. COUNT I: THE ALLEGED WARNER DEFICIENCIES
The action of council in awarding the cable contract to Warner notwithstanding the alleged deficiencies in its bid forms the basis of plaintiffs' due process and equal protection claims under § 1983 and § 1985, and under the Fifth and Fourteenth Amendments. Collectively those claims *1127 comprise count I of the complaint. Their essence may be drawn from ¶ 63 thereof which states:
"The action of Council in considering the materially deficient Warner proposal and awarding the franchise for the cable communications system for the City of Pittsburgh to Warner based on arbitrary, capricious, unlawful and irrelevant considerations unfairly deprived plaintiffs of due process and equal protection of laws ...."
A. The Statement of a Due Process Claim Under § 1983
It is clear from the language of the Fourteenth Amendment that to make out a claim for denial of procedural due process one must assert and prove that he unjustly was deprived of a protected liberty or property interest. The plaintiffs' primary contention appears to be that the protected interest of which they were deprived was a property right to have the cable television franchise awarded in accordance with the mandates and requirements of the CCO and the RFP. This will be examined further after a review of the relevant precedent.
We first consider the concept of the protected liberty or property interest. Current analysis in the procedural due process area employs the so-called "entitlement doctrine" as opposed to the former, more rigid, "rights/privileges" concept.[8] In the modern analysis, which was articulated principally in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), both liberty and property interests are seen as emanating not only from the Constitution, but also from state or federal statutory schemes and customs which create legitimate claims of entitlement to the benefits which they confer. With regard to property interests, the Roth Court stated at p. 577, 92 S.Ct. at p. 2709:
... To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it....
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits....[9]
In Roth the Court held that a college instructor who could point to no guarantee of continued employment, either in his contract *1128 or as a result of local school custom, had no property interest in his job which would require that a "just cause" hearing be held prior to his dismissal.
Employing the Roth concept of Fourteenth Amendment rights, the Court has held that due process protections must accompany the deprivation of the following interests: property interest in continued public education, where the state had voluntarily established a free public school system which permitted suspension of pupils only for certain specified reasons, Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975); property interest in public employment as a college instructor, where custom at the institution had established a "de facto" tenure system wherein instructors could be dismissed only for just cause, Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); and liberty interest in prison good-time credits where applicable regulations indicated that such credits would be forfeited only for serious misconduct, Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Conversely, the Court held that the following benefits did not rise to the level of protected interests and that, therefore, procedural due process was not a prerequisite to their deprivation: public employment, where neither custom nor contract conditioned discharge on the existence of good cause, Roth, supra, and Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); continued incarceration in a particular prison, where applicable regulations contained no guarantee that an inmate would be transferred only under certain specified circumstances, Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976).
In the case at bar, it is difficult precisely to delineate the nature and source of the property interest claimed by plaintiffs. Initially at least they appear to point to the CCO and the RFP as the sources of the interest. They rely specifically on the provisions therein which state that bids failing to comply with outstanding specifications or which fail to supply requested information would be rejected. Apparently, therefore, they are contending that their right to due process was denied when Warner was awarded the contract despite having failed to comply with those provisions. To the extent that this is indeed the plaintiffs' position, we must reject it. We cannot accept the proposition that either of the plaintiffs possessed a protected property interest in the adherence by council to the procedures outlined in the CCO and the RFP per se; i. e., that proof of a constitutional deprivation may be made by a showing, without more, of a breach of those provisions.
Recognition of the fact that the violation of a law is not, ipso facto, a deprivation of due process to all persons affected thereby is fundamental to an understanding of procedural due process. The due process clause is a narrow, personalized guarantee which only protects against the deprivation of one's own liberty and property; it is not a catch-all provision designed to promote the interest of society generally in the obedience of its laws. This principle is reflected in the oft-repeated precept that procedural due process issues require a two step analysis: the first to ascertain whether that of which the complainant was deprived constituted a personal liberty or property interest, and the second to determine the nature of the process to which the complainant was due as a legal prerequisite to any deprivation of the identified right. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972); Wilkinson v. Abrams, (3rd Cir. 1980) 627 F.2d 650, p. 664. Thus, in each due process case we have a separate benefit (the liberty or property interest) and a separate procedure (the delineated process due) involved. And to the extent that plaintiffs are pleading the deprivation of a protected interest as a result of council's failure to apply the provisions of the CCO and RFP to Warner, plaintiffs' protected interest and the process due obviously are one and the same, for the process they seek is, of course, adherence to the said provisions. In short, in our judgment there can be no property interest in a procedure *1129 itself;[10] if there be a protected interest involved here, it is to be found in the benefit whose enjoyment is sought to be regulated by the procedure; namely, the award of the contract.
We believe that plaintiffs' constitutional claim reasonably may be interpreted as alleging such an interest in the contract.[11] We shall proceed on that basis to determine if, in fact, plaintiffs had a definable property interest in the contract.
That a true property interest existed in the award of the contract cannot, as defendants urge, be summarily rejected by noting that, unlike the usual due process case, plaintiffs' are not being deprived of some benefit which they presently enjoy, but rather one which they desire to acquire in the future. Both the Supreme Court and the Third Circuit have recognized that a due process interest in benefits sought to be obtained may arise out of the very provisions regulating their disbursement. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), and Winsett v. McGinnes, 617 F.2d 996 (3rd Cir. 1980).
In Greenholtz, the plaintiffs, who were Nebraska prison inmates, sought to establish a liberty interest in their future admission into Nebraska's discretionary parole program. Plaintiffs first argued that a protectable interest in parole release exists any time a state enacts a parole release provision, i. e., a due process interest in parole release can be drawn directly from the Constitution regardless of the language employed in the vehicle creating the parole program. The Court rejected that notion, reasoning that unlike the interest in parole revocation recognized in Morrissey, supra, as emanating directly from the Constitution, initial admission to parole involves a benefit not presently enjoyed, but one merely desired. Plaintiffs next argued that an interest arose from an independent source; namely, the particular language of the Nebraska statute, especially its provision that parole release "shall" be ordered unless one of four specified circumstances existed. Plaintiffs claimed that the structure of the provision and its use of the word "shall" mandated release of an inmate in the absence of a finding of one of the four enumerated exceptions and therefore that it created a legitimate expectation of admission to the program. The Court accepted that argument, holding that "the expectancy of release provided in [the] statute is entitled to some measure of constitutional protection." 442 U.S. at 12, 99 S.Ct. at 2106. While, unfortunately, the Court offered no rationale for its ruling, it is nevertheless clear that a Fourteenth Amendment liberty interest springing independently and directly from state law was recognized in a *1130 benefit not presently enjoyed by those who sought to obtain it.
In Winsett, the Third Circuit faced an issue quite similar to Greenholtz when it dealt with a Delaware prison inmate's admission into that state's discretionary work release program. The plaintiff's liberty claim in Winsett was broadly similar to the property right plaintiffs assert here in that the state had established certain criteria for the granting of work release privileges to prison inmates, but certain officials had allegedly deviated from them in denying plaintiff's application. The defendants admitted that in denying the application they had considered criteria outside those specified in the work release provisions, but raised the threshold question of whether the program created a liberty interest under the Fourteenth Amendment. The Third Circuit, sitting en banc, held that as in Greenholtz no such interest emanated from the Constitution itself, but that one did arise as a result of the particular nomenclature of the Delaware program.
In reaching this result, the Circuit examined the various statutes and regulations pertinent to the work release program. One of the statutes, 11 Del.C. § 6533(a), provided that the Department of Corrections could adopt a work release program should it choose to do so. The Department thereafter adopted a program and promulgated regulations under which the principal criteria for admission were: "Demonstrated interest in personal improvement; progress toward increased maturity and self-understanding." In addition, admission into the program required approval at three distinct decision-making levels, the final one being the superintendent of the institution of incarceration, who, along with certain other specified officials, could make certain exceptions to the general procedures.
In analyzing these provisions, the circuit court rejected the trial court's conclusion that the program was essentially discretionary and that, therefore, it did not create a protected interest. It was the Circuit's position that the officials' discretion, when viewed in the proper context, was not so limitless as to negate a legitimate claim of entitlement to the benefit sought. The court observed that in creating a tri-level process in which committees subordinate to the superintendent often made detailed evaluations of the applicants, the state could not have intended that these evaluations be arbitrarily vetoed by the superintendent. But primarily the court noted that 11 Del.C. § 6533(a) was subordinate to § 6531 which governed the establishment of a variety of programs in the state correctional system and which stated as general policy that:
"Persons committed to the institutional care of the Department shall be dealt with humanely, with effort directed to their rehabilitation, to effect their return to the community as safely and promptly as practicable...."
That broad provision, said the court, also acted to limit the perimeters of the prison authorities' discretion by permitting them only to review applications in fulfillment of that policy, i. e., not arbitrarily, but humanely with a view to rehabilitation and the return to the community as safely and promptly as practicable.
It is apparent from Greenholtz and Winsett that in order to assess plaintiffs' claim of a property interest in the award of the cable television contract we must examine the state and local laws regulating its award, some of which have been mentioned previously.[12] Initially, we note that under Art. VII § 161.02(b) of the City Code and § 425.26(d) of the CCO the city retained the right to reject all bids for the cable television contract. Also, both § 511 of the City's Home Rule Charter and Article VII § 161.02 of the City Code state that, except for certain types of projects not here involved, contracts are to be awarded to the "lowest responsible bidder." Thus, while the city was under no obligation to award a cable *1131 television contract, if it chose to let the contract, it was required by law to award it to the lowest responsible bidder. In that regard, the Pennsylvania courts hold that in determining who, in fact, is the lowest responsible bidder the awarding party must exercise its discretion in a non-arbitrary fashion. Lutz Appellate Printers, Inc. v. Commonwealth of Pennsylvania, 485 Pa. 559, 403 A.2d 530 (1979); Zurenda v. Commonwealth of Pennsylvania, 46 Pa. Cmwlth. 67, 405 A.2d 1124 (1979).
With regard to compliance with bid specifications, it appears that: 1) Art. VII § 161.05 of the City Code requires bids for any city contract to comply with the relevant specifications; 2) the preface to the RFP required all bids to comply with the CCO; 3) both § 425.15(b) of the CCO and the preface to the RFP provided that bids which did not supply all information requested would be given no consideration; and 4) in meetings with the prospective bidders, employees of the city allegedly stated that bids must comply with the specifications in all details and that no opportunity for amendment would be provided.
The above laws and regulations constitute the "existing rules or understandings" from which the property interest, if present, is created and its dimensions defined. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. Our analysis of those provisions in light of Greenholtz and Winsett leads us to conclude that in the circumstances of this case a property interest of relatively narrow dimension exists. Simply stated, that interest was the right of the lowest responsible bidder in full compliance with the specifications to be awarded the contract once the city in fact decided to make an award. The due process to which one possessing the protected interest was entitled was the non-arbitrary exercise by the city of its discretion in making the award. And it follows that a deprivation of the substantive benefit (the protected property interest) without the process due is an actionable wrong.
The conclusion that there exists a property interest here is based largely on our conviction that there is no material distinction between this case and Winsett. Both deal with one's attempt to acquire a future benefit by satisfying certain statutorily-stated criteria, albeit a liberty interest in Winsett and a property interest here. The determinative factor in Winsett was that the scope of discretion to be employed in assessing an applicant was not absolute, but under state law had to be exercised in a reasonable manner. The same is true in the case at bar; Lutz and Zurenda make it clear that the city was required to act non-arbitrarily in assessing the various bids. The distinction that in our case the city retained the right to reject all bids and that, unlike the Winsett authorities, it arguably had total discretion at that initial point, is illusory because the city did in fact decide to make the award. At that time their initially unfettered discretion became circumscribed.[13] Thus, we believe that under the peculiar facts of this case Winsett is indistinguishable. As it concluded that a prisoner seeking work release possessed a liberty interest,[14] so we hold that a property *1132 interest in the award of the cable television contract was possessed by Three Rivers as a bidder for that contract.[15]
In addition to their claim that plaintiffs' interest in the contract was simply too speculative to invoke due process, defendants contend that plaintiffs lack standing to assert a Fourteenth Amendment deprivation. In support of this position they cite both federal and Pennsylvania case law which limit somewhat the standing of disgruntled bidders to challenge governmental contract awards. See Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S. Ct. 869, 84 L. Ed. 1108 (1940) and American Totalisator Co. v. Seligman, 27 Pa.Cmwlth. 639, 367 A.2d 756 (1976). However, those cases are clearly inapposite, because there the plaintiffs' claims are based on state or federal procurement statutes, rather than, as here, on constitutional grounds. It may be that those plaintiffs lacked standing to raise statutory claims, but the existence of standing cannot be questioned seriously with regard to the constitutional claim raised here. When a plaintiff alleges that he has been deprived of his liberty or property, it seems rather vain to argue that he does not satisfy the injury-in fact, zone-of-interest, requirements for standing. In a sense, much contained in the notion of standing is subsumed within the question of whether or not plaintiff's interest in a particular benefit is sufficient to create a liberty or property right initially, a dispute which we have resolved previously in this case.[16] In sum, the standing cases cited by defendants would only be relevant if plaintiffs' claim was statutory rather than constitutional.[17]
Finally, while for convenience we have to this point made no distinction between the two plaintiffs in our discussion of this constitutional claim, it is nevertheless evident from the foregoing that any property interest which exists in this case is possessed solely by Three Rivers, since it is the only party-plaintiff which bid on the contract. Plaintiffs have cited no authority, and we have found none, for the proposition that Matthew Moore's status as a taxpayer or prospective shareholder of Three Rivers is sufficient to vest in him any constitutionally protected property interest under the due process clause or even to confer on him the right derivatively to raise any denial-of-equal-protection claim which Three Rivers may have. Therefore, all claims under *1133 count I will be dismissed insofar as they are asserted by plaintiff Moore.
B. The Statement Of An Equal Protection Claim Under § 1983
Paragraph 10 of the complaint alleges that the award of the contract to Warner was the product of "a predetermined and unlawful preference in favor of Warner and against Three Rivers ...." More specifically, Three Rivers alleges that in evaluating the various proposals the municipal defendants accorded Warner's bid preferential treatment and that Warner alone was permitted to amend its bid on two occasions.
Those allegations of unequal application of the otherwise facially neutral bidding provisions clearly state a § 1983 claim for denial of equal protection. The Supreme Court long ago held that:
Though [a] law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).
The defendants suggested at oral argument that no equal protection claim was, or could be, stated here because plaintiff was not a member of a suspect class, nor was it being deprived of any fundamental or property right independently cognizable under the Fourteenth Amendment. This position is not well taken. While we have found the existence of an independent property right in our assessment of the due process claim of Three Rivers, the finding of such a right is not a prerequisite to an equal protection claim. From the language of the Fourteenth Amendment, "... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," it is clear that the due-process and the equal-protection guarantees are in separate clauses and that property and liberty interests pertain only to the former. Second, it is well established that the existence of a suspect class or fundamental right merely affects the level of scrutiny to which an apparently unequal application of the law will be subjected; it is in no way relevant to one's initial right to claim the protection. See generally, Nowak, "Constitutional Law," (1978), Ch. 16, § C. Thus, equal protection claims have been recognized in the commercial setting where plaintiffs of nonsuspect classes have complained of the unequal application of an otherwise neutral provision. See, Cook v. City of Price, 566 F.2d 699 (10th Cir. 1977) (selective enforcement of zoning ordinance re "home businesses" to deny plaintiff operation of her boutique); Burt v. New York, 156 F.2d 791 (2nd Cir. 1956) (discriminatory denial of building permits to plaintiff architect); Milnot Company v. Arkansas State Board of Health, 388 F. Supp. 901 (E.D.Ark. 1975) (selective enforcement of local "filled milk" statute against plaintiff milk producer but not against others selling essentially the same product).
C. The Statement of a § 1985 Claim
While we conclude that plaintiff Three Rivers does state a § 1983 claim for denial of equal protection, the question remains whether it also states a claim under § 1985(3) for conspiratorial denial of equal protection. We believe that it does not. While it may be argued that the Supreme Court's principal decision in the § 1985 area, Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971), left the issue unresolved, the Third Circuit has recently held that a § 1985(3) claim (as distinguished from a § 1983 claim) must allege class-based discrimination grounded on some immutable characteristic such as race or sex. Carchman v. Korman Corporation, 594 F.2d 354 (3rd Cir. 1979) (tenants' association for an apartment building does not constitute a class based on immutable characteristic).
In the instant case, Three Rivers has alleged that a competing cable firm, Warner, *1134 was accorded preferential treatment, but there is no allegation in the complaint that this discrimination was based on some immutable characteristic possessed by one and not the other. And it is not sufficient for plaintiff merely to allege, as it does, that the municipal defendants favored Warner's minority participation program over that of Three Rivers, for this is not an allegation of discrimination based on race. Obviously, the choice of one minority group over another minority group possessing the same immutable characteristic can hardly amount to race-based discrimination. In short, it is not enough that some members of a particular minority group were discriminated against while other members of the same minority group were favored by the complained-of act; it must be alleged that their minority status was the reason for the discrimination, and this logically cannot be if they are all of the same minority group. Accordingly, plaintiff's § 1985 claim will be dismissed.
D. The Statement of Fifth And Fourteenth Amendment Claims
In addition to asserting its due process and equal protection claims under § 1983, Three Rivers seeks to raise them directly under the Fifth and Fourteenth Amendments. Neither the Supreme Court nor the Third Circuit has resolved the question of whether the Fourteenth Amendment provides a direct remedy for deprivations of this sort. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Rogin v. Bensalem Township, 616 F.2d 680 (3rd Cir. 1980). However, Rogin suggests that there is no need to imply such a remedy where all of the relief to which plaintiff would otherwise be entitled is available under § 1983. That is the case here, and plaintiff's Fourteenth Amendment cause of action will be dismissed.
As for an asserted Fifth Amendment cause of action, the due process guarantee contained therein is, of course, addressed to activity of the federal government, and since there is no suggestion that any of the defendants has any association with the federal government, that claim also will be dismissed.
E. The Presence Of "Official Policy" and State Action
The defendants move to dismiss all of the constitutional claims of the complaint for its failure to allege that the claimed deprivations were, in the municipal defendants' case, the product of some "official policy" as is required under Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), and, in Warner's case, done "under color of state law" as is required under § 1983. As to the municipal defendants' claim, we note that in Monell the Supreme Court ruled that local government entities may be held liable in money damages for constitutional violations committed by their employees only if those actions implement "official policy," i. e., respondeat superior is not a basis for recovery from local government bodies. The municipal defendants claim that plaintiffs' complaint fails to allege that the challenged action here was done in furtherance of some official policy.[18]
In Monell the Court had no need to consider exactly what constitutes "official policy," since its existence was not denied. Monell, supra, at n. 2. However, it did note that official policy included a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by [a] body's officers ...," as well as "deprivations visited pursuant to government `custom' even though such custom had not received formal approval through the body's *1135 official decision making channels." Monell, supra, at 690-1, 98 S.Ct. at 2036. The Court also observed that in addition to its lawmakers, a governmental body's "policy" may be made by "those whose edicts or acts may fairly be said to represent official policy ...." Monell, supra, at 694, 98 S.Ct. at 2038.
In the instant case, the municipal defendants ingeniously argue that plaintiff actually charges them with violating official policy rather than implementing it. They syllogize as follows: The official policy of the city as expressed in state law and in its own Home Rule Charter is to award contracts to the lowest responsible bidder; the gravamen of plaintiffs' charge is that the municipal defendants failed to award the contract to the lowest responsible bidder; therefore, they are being charged with violating, rather than implementing, city policy.
The fallacy in defendants' reasoning is readily apparent. State law and the Home Rule Charter obviously are not the sole repository of the city's official policy. It is clear from Monell that policy is whatever those authorized to speak for the governmental body formally say it is, regardless of whether any such statement conflicts with some earlier expressed ideal. And one would be hard pressed to imagine an act that more readily could be characterized as "official policy" than that which is the basis of plaintiff's claim; namely, a resolution (awarding the cable television contract to the defendant Warner) passed by city council in regular session pursuant to specifically granted powers. Were we to accept defendants' position, municipalities would be insulated from § 1983 liability by the very oaths which many, if not all, governmental bodies require their officials to take requiring adherence to the Constitution and laws of the United States, because any subsequent act contrary to the Constitution, ipso facto, could not be "official policy." Thus, even though deprived of an otherwise constitutionally protected right, an injured party would have no cause of action against perhaps the only entity which could respond in damages. The anomaly is obviously unacceptable, and we therefore reject this argument.
As to Warner's claim that there is no allegation that it acted under color of state law, it is true that a private entity's individual action normally would not constitute state action so as to subject it to suit under § 1983. However, it is well settled that where a private entity acts in concert with a state actor, the former is also subject to liability under § 1983. Adickes v. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605-1606, 26 L. Ed. 2d 142 (1970); Jennings v. Shuman, 567 F.2d 1213 (3rd Cir. 1977). Three Rivers has alleged that Warner acted in concert with employees of the Department of Public Works who gave Warner an opportunity to amend its bid (Complaint ¶ 58). Thus, insofar as that or other similar concerted activity forms the basis of a claim for relief, Warner's motion to dismiss for plaintiff's failure to allege that Warner acted under color of state law will be denied.
F. Legislative Immunity
The municipal defendants next assert absolute legislative immunity. Specifically, they argue that the act of which plaintiff complains-council's authorization of the contract award to Warner-was legislative in nature and, therefore, under Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), and its progeny they are absolutely immune from liability. Plaintiffs respond first that the award was executive or administrative in character and, second, that even assuming that it was legislative, immunity of the type claimed by defendants does not extend to a municipality or its employees sued in their representative capacity, but only to municipal employees sued in their individual capacity.
In order for defendants to prevail, it must appear from the complaint that the critical act is legislative in character. Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (1980, 8th Cir.). The relevant act cited in count I is the adoption by council of the resolution authorizing the award of the contract to Warner. We must therefore determine if on its face the act was legislative, in *1136 which event there may be immunity, or whether it was executive or administrative, in which event there would be no legislative immunity even though it was done by a body essentially legislative in character.
Legislative acts are said to be broad, general policy statements establishing guidelines by which the future conduct of an entire group of persons falling within a particular classification will be judged. See Rogin, supra, at 693. By contrast, executive or administrative acts in this context generally consist of the application of legislation to specific situations. See Rogin, supra, at n. 60. Thus, Rogin held that while an amendment of a local zoning provision having application to all property within a certain district was a legislative act, the denial of a variance under that legislation to a particular individual was an administrative act. Likewise, the Supreme Court recently held that the promulgation of ethical rules by a state supreme court was a legislative act, whereas the enforcement of those rules by that court was not legislative and thus could not be defended on the basis of immunity. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980).
While the distinction between legislative and administrative acts is sometimes unclear, that is not true in the case at bar. The only relevant legislative act we can discern from the facts of this case was the passage of the CCO, which set forth the specifications and requirements to be met by all bidders. The subsequent adoption of the resolution awarding the contract to Warner, on the other hand, was clearly an administrative act, since it was the culmination of a process whereby the broad policy enunciated in the CCO and implemented by the RFP was being applied in a specific instance to determine to what bidder the contract should be awarded. The fact that the decision was made via a resolution is immaterial, since it is clear from Rogin and Consumers Union, supra, that the test is the nature of the act and not how it is accomplished. Indeed, long ago the Pennsylvania courts explicitly ruled that the award of a governmental contract pursuant to previously granted authority so to do was an administrative rather than a legislative act. Jones v. Schuylkill, 202 Pa. 164, 51 A. 762 (1902); Seitzinger v. Tamaqua Borough, 187 Pa. 539, 41 A. 454 (1898); Cf. Wilkes-Barre Connecting R.R. Co. v. Kingston Borough, 319 Pa. 471, 181 A. 564 (1935). Since we find that the questioned act was administrative and not legislative,[19] we need not address plaintiff's secondary argument, to-wit, that even if this was a legislative act, Tenney-type immunity would not extend to the municipal defendants sued in their official capacity.[20]
G. Specificity Of The Complaint
Defendant Warner alleges that plaintiff's pleading is too vague and conclusory to satisfy the well established requirement that civil rights complaints must be pleaded with specificity. Esser v. Weller, *1137 467 F.2d 949 (3rd Cir. 1972). We disagree. As to both the due process and equal protection claims, the plaintiffs have stated in specific terms how they were denied due process (by council refusing to disqualify Warner's bid and to award the contract to the lowest responsible bidder); how they were denied equal protection (by certain defendants permitting Warner's bid to be amended and evaluated according to a more favorable standard); when those violations occurred (in November of 1979 meetings with employees of the Department of Public Works and at the public hearing wherein the award was made); and who committed the violations (council members, and certain city employees of the Department of Public Works acting in concert with Warner). We believe that plaintiffs have been sufficiently specific.
H. Failure To Join Indispensable Parties
The municipal defendants moved to dismiss the complaint under Rules 12(b)(7) and 19, Fed.R.Civ.P., on the ground that the plaintiff had failed to join the remaining two bidding companies, Allegheny Cablevision, Inc., and Community Cablevision, who defendants contend are indispensable parties to this action. Movants misconceive the function and purpose of Rule 19, which requires dismissal of an action only after the court determines that a person described under subdivision (a) thereof should be joined but cannot be. See discussion in Wright & Miller: Civil § 1602.
The rule imposes no burden on the plaintiff in the first instance to take the initiative to join such a party, in fact it provides that the court shall order the joinder when it determines that this is indicated under the rule. And dismissal is, in effect, a last resort measure to be taken only when for reasons of jurisdiction or venue such a person cannot be brought into the action. Heath v. Aspen Skiing Corp., 325 F. Supp. 223, 229 (D.C.Colo.1971).
There is nothing in the record before the court from which it could conclude that there are entities who should be made parties under Rule 19(a) but who cannot be joined without depriving the court of jurisdiction or venue. The Zurenda case, supra, cited by the movants for the proposition that "... under Pennsylvania law all disappointed bidders must be joined in any action to void a government ..." contract award (City brief p. 51) (emphasis added) holds only that the successful bidder (here, Warner) need be joined.
The Court in In Re Caesars Palace Securities Litigation, 360 F. Supp. 366 (S.D.N.Y. 1973) at p. 395 pointed to the numerous factors which must be considered in disposing of this type of motion and concluded that none of them possibly could be considered on the bare record then before it. The same applies in our case, and the defendants' Rule 12(b)(7) motion will be denied.
IV. COUNT II: THE VAGUENESS CLAIM
In count II Three Rivers seeks relief under the Fourteenth Amendment because of the adoption by the city of certain allegedly vague and conflicting bid specifications. More particularly, plaintiff charges that language in the CCO and RFP regarding minority inclusion in the corporate structure of bidding companies was so ambiguous and contradictory as to deny plaintiff its rights under the due process and equal protection clauses. Defendants have moved to dismiss this count for failure to state a claim, arguing that it is clear from the face of the specifications that they are neither vague nor contradictory. In view of the fact that Three Rivers has tendered to the court matters outside the pleadings, specifically the RFP, and that the RFP and the CCO appear to contain all the matter relevant to this claim, we shall treat the defendants' motion as having been converted under Rule 12(b)(6) to a Rule 56 motion for partial summary judgment, and that motion will be granted.
The matter of female and minority involvement is covered entirely in the CCO and the RFP. Section 425.17(f) of the CCO states:
*1138 (f) Any person submitting a proposal to enter into an agreement for the award of a franchise in accordance herewith may offer consideration in addition to that listed in subsections (a), (b), (c), (d), (e), hereof, including, but not limited to, additional services and/or facilities and minority or female ownership. For purposes of this section a "minority" means a citizen of the United States who is not a member of the Caucasian race and is of Oriental, Asian, African, American Indian, Eskimo, Aleut, Puerto-Rican or Mexican American Ancestry. Nothing in this chapter shall be construed by inference or definition to indicate that female and minority are synonymous or should be considered as same[21]
The following passages appear in the RFP's preface and §§ 6.8 and 6.9 respectively:
Proposals should address in a positive and meaningful way, full-scale minority participation in the proposed cable communications system (see Section 425.17 of the Code).
6.8 Describe in detail the nature and extent or current ownership in applicant by minority and female individuals or enterprises, including the extent to which such ownership is by persons or enterprises located within the standard metropolitan area around the City of Pittsburgh and when such ownership was acquired.
6.9 Detail provisions, if any, for including minorities and women in ownership for each year of the term of the Agreement awarding a franchise.
Plaintiff contends that those specifications are both vague and conflicting in that: 1) they fail to define adequately the phrases "minority or female ownership" and "full scale minority participation," thereby creating ambiguity and apparent contradiction; and 2) assuming that those phrases are contradictory, they fail to state specifically which requirement takes precedence over the other.
As the Supreme Court has noted, the standard to be applied in resolving this type of claim is whether the challenged language is so lacking in certainty and definiteness that persons of ordinary intelligence must necessarily guess at its meaning. Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976). This standard, the Court indicates, applies with "particular force" when the questioned statute is either penal or implicates First Amendment rights, Hynes, supra, at 620, 96 S.Ct. at 1760. Of course, the questioned provisions in this instance are neither.
Applying the ordinary intelligence standard, we find no undue ambiguity in the minority involvement specifications. In our judgment, the meaning of the terms "full-scale," "ownership," and "participation" are sufficiently definite. The meaning of "ownership" is self-evident. The term "full-scale" is commonly understood as suggesting an act or thing which is substantial, something significant and meaningful, as contrasted with minor or half-hearted. "Participation" means to share or to have a share in common with others, and in this case it is clearly consistent, not only intrinsically but contextually as well, with "ownership" since the preface to the RFP in which it appears makes a direct reference to § 425.17 of the CCO where the term "ownership" is used. Furthermore, aside from the generally understood meaning of the individual words, the phrases "minority or female ownership" and "full scale minority participation," when read in context are sufficiently clear and definite that persons of ordinary intelligence need not guess at their meaning.
And, while it may not be germane at this point, we note from both the complaint and the "Evaluation of Proposals" prepared by the Bureau of Cable Communications and *1139 filed of record, that in terms of the amount and type of participation offered minorities, the Three Rivers and Warner bids were quite similar to one another.[22] This suggests to us that in fact Three Rivers neither was confused nor uncertain as to what the city wanted in the way of a minority involvement program.
There remains the question of whether or not, as plaintiff contends, the two phrases are somehow contradictory. Unfortunately plaintiff offers scant clue to its reasoning on this point, being content merely to assert that a contradiction exists without in any way indicating a basis for the assertion.
In any event, as we view the language itself, we note that one phrase speaks of "minority or female ownership", while the other refers to "full-scale minority participation." The addition of the term "full-scale" in the latter phrase appears to be insignificant. The difference between "minority" and "minority or female" and between "ownership" and "participation" are only slightly more material. But even those differences, when considered in context, do not render the specifications constitutionally infirm. The phrase "full-scale minority participation" appears in the preface to the Introduction section of the RFP. The Introduction addresses in general terms a wide variety of subjects including, inter alia, directions for completing the various sections of the RFP, where and how to file bid proposals, the cost of filing said proposals, and so forth.
The preface is even more general in tone, referring, inter alia, to the purpose of the RFP, the desire of the city to obtain the optimum system, and the character of the bids as irrevocable offers. Thus, a fair reading of the preface to the RFP in context should have placed one on notice that matters regarding bid specifications contained in that portion of the RFP were somewhat less than definitive. This is confirmed when one notes that the phrase relating to minority participation appearing in the preface is preceded and followed by more particular and formal provisions dealing with minority involvement, which are entirely consistent with one another. Specifically, § 425.17(f) of the CCO, which was enacted prior to the publication of the RFP, and §§ 6.8 and 6.9 of the RFP itself, which follow the preface in the designated section dealing particularly with minority involvement, refer only to ownership by minorities and females; there is no use of the words "full-scale" or "participation," or of minorities but not of females. If this fact alone, that the substantive provisions dealing with minority involvement are entirely consistent, was not sufficient to advise a bidder as to what was expected of it, then any remaining doubt should have been eliminated by the fact that the "ambiguous" or "contradictory" phrase in the preface was followed immediately in parentheses by a citation to § 425.17 of the CCO. With all of that, it is difficult to understand how even the most imperceptive bidder would not have been advised as to what the controlling provisions on minority involvement were.
Accordingly, with regard to count II, the Fourteenth Amendment claim based on the allegedly ambiguous and contradictory language of the minority involvement specifications, there being no genuine issue as to any of the foregoing material facts relating to the existence or textual content of the CCO and RFP, and for the foregoing reasons the court having found that as a matter of law the bid specifications were not so vague and conflicting as to have violated plaintiff's constitutional rights to due process and equal protection of the laws, partial summary judgment will be entered in favor of the defendants and against the plaintiff Three Rivers.
NOTES
[1] The third common ground, sometimes referred to as the separate doctrine of "Our Federalism," is invoked to prohibit disruption of an on going state judicial proceeding. See generally, Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and Wright & Miller, Federal Practice and Procedure: Civil §§ 4251-55. That, of course, is not involved here.
Admittedly, not every abstention case can be fitted neatly into one of these designated categories. However, the Court has referred to these three general grounds for abstention even where its ultimate basis for favoring abstention has been some other factor, such as judicial economy. See Colorado River, supra, 424 U.S. at 813-16, 96 S.Ct. at 1244-1246. At any rate, the first two categories mentioned are the most relevant to the instant case and are, in fact, the ones raised by the parties.
[2] A third implicit prerequisite is the existence of a state forum for review, for obviously if there is no state court available to render an authoritative determination there is reason not to abstain. Hillsborough Township v. Cromwell, 326 U.S. 620, 66 S. Ct. 445, 90 L. Ed. 358 (1946).
[3] See text, infra, pages 1131 1132.
[4] The Court did abstain ultimately for reasons of judicial economy.
[5] Defendant Warner seeks to support its abstention argument by citing several F.C.C. cases which in very general terms state that alleged constitutional violations occurring during procurement of cable television bids are matters for local courts. See, for example, In re Application of Sentinel Communications, 47 F.C.C. 420 (1974); In re Application of International Telemeter, 47 F.C.C. 469 (1974); In re Application of Warner Cable, 30 P. & F. Radio Reg.2d 1206 (1974). But given the context of those statements and the nature of F.C.C. authority, those cases are not persuasive.
Typically there, competing bidders would oppose an awardee's application to the Commission for a certificate of compliance on numerous grounds, one of which would relate to alleged violations of general due process requirements in connection with the contract award. A certificate of compliance, which until 1976 had to be obtained before a franchisee could commence operation, 47 C.F.R. § 76.11 (1976 ed.), certified to all concerned that the applicant was in conformity with relevant F.C.C. rules and practices relating to cable television systems. In the course of disposing of an opponent's generally lengthy list of objections to the application, the F.C.C. would sometimes state that if an opponent wished to raise questions of constitutional law violations, "the proper forum for such a challenge is not before this Commission but rather through local judicial process." Sentinel Communications, supra, at 423.
The F.C.C., like other administrative agencies, is generally concerned with relatively narrow, technical matters entrusted to it and, specifically in the cases cited by Warner, the compliance of cable television franchisees with F.C.C. rules. This is clear from the statements by the Commission in these cases that while it required franchise agreements to recite that a due process hearing was held regarding the technical qualifications and adequacy of the proposed system, 47 C.F.R. § 76.31 (1976 ed.), the Commission would not look behind a franchise agreement that so recited, International Telemeter, supra, at 472, and that it did "not intend to act as a court of last resort" for disgruntled bidders, but rather would generally presume that a hearing in accord with due process was held where local officials so assure them. Sentinel, supra, at 422.
With that, we believe that the F.C.C.'s reference to "local judicial process" is more appropriately viewed as a signal to the litigants that questions of constitutional proportions should not be thrust upon an administrative agency of limited jurisdiction and purpose so as to turn a certificate of compliance dispute into "a federal case," but rather should be raised in more traditional courts of general jurisdiction. And we read those cases as expressing no view as to which of the two traditional jurisdictions-federal or state-is the more appropriate for that purpose, since their references to "local" have been anything but the culmination of detailed discussions on federal/state relations or the public policy of implications of franchising cable television.
[6] The municipal defendants argue that under 2 Pa.C.S.A. § 752 plaintiffs could have filed an appeal from council's decision on the contract. That is true, but § 752 does not purport to provide an appeal mechanism special or unique to cable television controversies. On the contrary, that section provides generally for appeals from any adjudication of a local agency and not just those arising out of cable television matters. In addition, under 42 Pa.C.S.A. § 933(a)(2) those appeals are heard by courts of general jurisdiction, viz., the courts of common pleas. All of which is in contrast to the operative facts found to be significant in Burford. In short, Pennsylvania provides no special judicial or administrative trial or appeal process for disputes over cable television matters.
[7] In support of a motion to lift the stay on discovery imposed during the pendency of the instant motions, Three Rivers alleged, inter alia, that while undertaking its installation efforts Warner may be acquiring rights-of-way and exhausting limited governmental funds which could make installation by Three Rivers more difficult should it eventually obtain the contract.
[8] Under the rights/privileges approach it was generally held that while one could not be denied without due process a right granted expressly or impliedly in the Constitution, one could be deprived of one of the many personal benefits conferred on citizens by various government programs and statutes. The former group of benefits were thought to be true "rights" since they emanated directly from the Constitution, while the later group consisted of the mere "privileges" of living in modern society. Bailey v. Richardson, 182 F.2d 46 (D.C.Cir. 1950) aff'd, 341 U.S. 918, 71 S. Ct. 669, 95 L. Ed. 1352 (1952). However, the inquiry now centers more on a legitimate claim of entitlement based on the circumstances surrounding the acquisition of the interest than it does on the existence of a definite constitutionally conferred right.
[9] It has been suggested that in addition to the "legitimate claim of entitlement" a second factor must be established in order to assert a due process claim; namely, present enjoyment of the benefit. See Nowak, "Constitutional Law" (1978), p. 491-494. Thus, one may advance the proposition that while a person may not be discharged from a particular job without due process, his initial attempt to acquire that job could be rebuffed arbitrarily. While there is language in Roth, supra, suggesting as much ("the Fourteenth Amendment's procedural protection of property is a safeguard of the security interests that a person has already acquired in specific benefits," (408 U.S. at 576, 92 S.Ct. at 2708) (emphasis added), the Supreme Court has never addressed this issue squarely. We note, however, that recent holdings of both the Court and the Third Circuit indicate that present enjoyment is not a necessary factor in establishing a due process interest. See, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) and Winsett v. McGinnes, 617 F.2d 996 (3rd Cir. 1980), discussed more fully in the text. The instant case, of course, is one dealing with an attempt to acquire a benefit not yet enjoyed.
[10] Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957), cited by the plaintiffs, is not to the contrary. In Service the Court ruled that a governmental employee had been unlawfully discharged because his employer had violated its own agency regulations in making the dismissal. However, the claim stated there was strictly a statutory one based on the breach of federal regulations; there was no constitutionally-based claim nor ruling made involving the existence of a property interest in agency procedures.
International Association of Firefighters v. Sylacauga, 436 F. Supp. 482 (N.D.Ala.1977), also cited by plaintiffs, does deal with constitutional issues, but we do not find it persuasive here. In that case the court considered an alleged due process violation arising out of the failure of a city to follow its own stated procedures for the promotion of firemen. While there is language suggesting that the court found a property interest in the promotional rules as such, particularly the finding that "defendant ... deprived plaintiffs of their property interest in the promotional procedures described by state law ...," at pp. 489-90, the constitutional discussion contained therein is too ambiguous for one to conclude that the case clearly stands for that proposition. It is quite possible that the court was really saying that the complainants had been denied their interest in the job by the city's violations of the promotion procedure. At any rate, for the reasons set forth in the text, we cannot accept Sylacauga to the extent that it holds that one may have a proper interest in a procedure.
[11] We note, for example, plaintiffs' argument that "The establishment of these standards created an obligation of the municipal defendants as well as an expectation ... that the cable communications system franchise would be awarded only to an applicant who satisfactorily complied with all those standards." Plaintiffs' brief p. 11.
[12] Unlike Greenholtz no claim is made here by plaintiffs that their due process right emanates directly from the Constitution.
[13] It seems to us that the only significance in the right of city to reject all bids is in the fact that if it chose to award no contract, no due process claim would arise, even if Three Rivers could establish that among those competing it was the lowest responsible bidder.
[14] We note that the specific holding in Winsett was that "... a state-created liberty interest in work release arises when a prisoner meets all eligibility requirements under the state regulations and the exercise of the prison authorities' discretion is consistent with work release policy." 617 F.2d at 1007. We have considered the possibility that a literal reading of that language might lead one to conclude that a Fourteenth Amendment interest in a future benefit, such as work release in Winsett or the award of the cable television contract in the case at bar, does not arise until the party asserting that interest establishes the merits of his claim to the ultimate benefit, i. e., proves that but for the denial of the process due he would have obtained the benefit.
If a literal application be given to the Winsett holding, only one of all the bidders for the instant contract would be entitled to due process (a non-arbitrary evaluation of its bid), since obviously there can only be one lowest responsible bidder. However, when Winsett is read in the light of its underlying rationale as set forth in the text, as well as its reliance on Greenholtz, which is plainly not so restrictive, it is clear that the Circuit did not intend that Winsett be applied in such an anomalous way. Thus, in this case Three Rivers need only establish its status as a bidder on the contract for its property interest therein to arise, i. e., to invoke the procedural protections of the due process clause applicable to the bid process.
[15] Estey Corporation v. Matzke, 431 F. Supp. 468 (N.D.Ill.1976), cited by defendants, does not persuade us to a contrary holding. In that case the court concluded that a losing bidder on a state contract had no property interest in the award thereof. To the extent that Estey offers that conclusion as a proposition of general applicability, we have no choice but to disagree with the district court in light of our interpretation of the Third Circuit's pronouncement in Winsett.
[16] A detailed discussion of the evolution of standing concepts, particularly as they relate to the assertion of constitutional claims, is found in Americans United, Etc. v. H.E.W., 619 F.2d 252 (3rd Cir. 1980), most recently applied in United States v. Westinghouse, 638 F.2d 570 (3rd Cir. 1980).
[17] Even if the claim here was statutorily-based, it is still likely that standing to bring this suit would exist. The federal case holding that a mere disgruntled bidder lacked standing, Perkins v. Lukens Steel Co., supra, is now understood by the Third Circuit and other circuits as tacitly having been rejected by subsequent Supreme Court cases. See Merriam v. Kunzig, 476 F.2d 1233 (3rd Cir. 1973) and cases cited therein. Merriam indicates that disgruntled bidders, such as Three Rivers, probably would have standing if this suit were brought on federal statutory grounds.
The Pennsylvania position on standing is that a losing bidder has standing to challenge an award in its status as a state taxpayer and not otherwise. Heilig Bros. v. Kohler, 366 Pa. 72, 76 A.2d 613 (1950); American Totalisator Co. v. Seligman, 27 Pa.Cmwlth. 639, 367 A.2d 756 (1976); Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A.2d 138 (1966). Here the plaintiffs apparently qualify, since the complaint alleges that Three Rivers is incorporated under the laws of Pennsylvania and that Matthew Moore is a taxpaying resident thereof.
[18] The immunity Monell thus provides to municipalities also extends to the individual defendants sued in their official capacity, since official capacity suits are tantamount to suits against the public body itself. Monell, supra, at n. 55. In the instant case, the defendant council members have been sued only in their official capacity. Not only is this apparent from the caption of the complaint, but in addition at oral argument counsel for plaintiffs stated that plaintiffs seek no recovery out of the personal assets of said individuals. Transcript, May 21, 1980, Argument, p. 80.
[19] In a recently filed supplemental brief, defendant Warner seeks to support its argument for legislative immunity by citing three newly decided cases in the Third, Fourth, and Eighth Circuits respectively. Rogin v. Bensalem Township, 616 F.2d 680 (3rd Cir. 1980); Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (1980, 8th Cir.). Those cases hold that no denial of due process or equal protection occurs where a local government body acts arbitrarily in enacting new zoning laws and that any members of the public who privately lobbied for such laws were privileged so to do by the First Amendment. However, those cases beg the question, since there was no real dispute that they involved legislative acts, whereas that is the very issue before us in this case.
[20] Of course even administrative acts may be clothed with a limited good faith immunity in certain circumstances, Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). However, good-faith immunity is an affirmative defense, Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 572 (1980). Since we are still in the motion stage of the proceedings and none of the defendants has filed an answer, the viability of that defense and the related question suggested by plaintiff that under Owen v. City of Independence, 445 U.S. 622, 634, 100 S. Ct. 1398, 1407, 63 L. Ed. 2d 673 (1980) even this limited immunity is unavailable to government officials sued in their official capacity, are not now before the court.
[21] Sub-sections (a), (b), (c), (d), and (e) relate to mandatory forms of consideration such as payment of a certain percentage of the franchisee's annual gross revenues to the city; granting the city an option to purchase the system; installation of a television studio in the City County Building; free service to any building designated by the city which is used for a public purpose; and free service as well to all schools and colleges within the city.
[22] Three Rivers' proposal provided for 15% of its system to be purchased by minorities, each of whom would vote his or her own stock. Warner's program offered to grant a 20% ownership in 17 minority organizations for no or nominal consideration, but the voting right of said stock was to be held by a voting trust composed of three individual minority persons. Both companies proposed to fill one-third of their board of director positions with minority persons.
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237 Md. 357 (1965)
206 A.2d 568
WATKINS
v.
STATE
[No. 71, September Term, 1964.]
Court of Appeals of Maryland.
Decided February 2, 1965.
The cause was argued before HAMMOND, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.
William O. Goldstein, with whom was Roland Walker on the brief, for appellant.
Fred Oken, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and John D. Hackett, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City on the brief, for appellee.
HORNEY, J., delivered the opinion of the Court.
The Criminal Court of Baltimore in a nonjury case convicted the defendant (James E. Watkins) of armed robbery and he appealed. In this Court, the only questions raised relate to the quality of the evidence produced in the trial court, that is, whether the evidence was so inadequate as to require granting *359 the motions for judgment of acquittal, or whether the evidence was legally sufficient to warrant the conviction.
Shortly after 9:00 p.m. in the evening of November 1, 1963, a man entered a service station on Reisterstown Road and asked the attendant for an automobile battery. When the attendant started to get one from a rear room, the man drew a revolver and demanded money. A second man, carrying a plastic bag, then entered the station and ordered the attendant to place the money (between $130 and $140) into the bag. The attendant complied. A customer, who was waiting outside for service on his automobile but who did not see the holdup, became suspicious when, upon seeing one man enter the station, he saw two leave, join a third waiting at a parked automobile and drive off. After jotting down the license number, the customer entered the station, learned of the holdup and promptly notified the police and gave them a description of the automobile and the license number. About an hour later, a police officer, while halting an automobile fitting the description and license number of the one to which he had been alerted, saw the driver and sole occupant attempt to conceal something over the sun visor. After the arrest of the driver, a search of the vehicle disclosed a plastic bag containing several dollars in coin. On being taken to a police station, the driver denied any knowledge of or participation in the holdup, but a search of his person revealed $89 in currency having an odor of gasoline and oil.
At the trial, the station attendant, although unable to recognize the defendant at the preliminary hearing, positively identified him as the man who had ordered him to put the money into the plastic bag. The attendant also identified the bag taken from the automobile as the one used in the holdup. Although it was dark and raining on the night of the robbery, the attendant also testified that he had seen the automobile drive in and out of the service station several times before parking. He had previously identified the automobile on the police impounding lot soon after the arrest of the defendant. He identified it again from a photograph at the trial.
The customer, who had written down the license number of the parked automobile, was unable to identify the defendant as *360 a participant in the robbery either at several police lineups or at the trial. In fact, he excluded the defendant as one of the men he saw leave the service station after the holdup. He did, however, identify the automobile at the impounding lot as the one used in the robbery. The license number which he had written on a vending machine inside the station was also identified by the customer as the same one he had recorded.
The defendant, in testifying for himself, denied, as he had done while being interrogated at the police station, that he participated in the robbery. Although he could not explain how his automobile came to be used in the robbery, the defendant claimed that at the time of the holdup he was in a tavern in Catonsville where he had gone in the early evening in search of a tavern employee whom he knew only as Mary. He left the tavern in his automobile after spending several hours there, and it was after he had left that the arrest took place. He explained the presence of the plastic bag in his automobile by testifying that he was a "numbers" collector for an employer he knew as Cleo. He attempted to conceal the bag because of his illegal activity. He attributed the odors emanating from the currency found on his person to the fact that he had been working on his automobile. And he accounted for the large sum of money he was carrying at the time of his arrest by explaining that he had received fifty dollars from a friend. His testimony as to having worked on his automobile and as to having received the money was corroborated by the only witness he called. But the State, in an effort to refute his alleged presence at the Catonsville tavern at the time of the robbery, called a Mary Thorne in rebuttal. This witness, who was employed at the tavern during the evening of the holdup, not only testified that she neither knew the defendant nor saw him in the tavern on that occasion, but, according to her, no other employee named Mary was working at the tavern on the date of the robbery.
Since both questions concern the sufficiency of the evidence, we shall consider them as posing a single contention. The defendant, relying primarily on the fact that the station attendant was unable to identify him at the preliminary hearing and the further fact that the customer excluded him as one of the men he saw at the scene of the crime, contends that the trial court *361 erred in refusing to grant his motions for judgment of acquittal and that the evidence was legally insufficient to support the conviction. We do not agree.
While the record before us does not show whether or not the motion for judgment of acquittal was renewed at the conclusion of the whole case the defendant claims it was: the State insists it was not it is clear that had it been renewed, it was properly denied each time it was offered. In performing the only function of this Court in reviewing the sufficiency of the evidence in a nonjury criminal case, we think it is apparent that the evidence produced in the trial court and the inferences deducible therefrom were such that the court could have been fairly convinced beyond a reasonable doubt that the defendant was guilty of the offense charged. Maryland Rules 772 and 886 a. See Graczyk v. State, 233 Md. 245, 196 A.2d 469 (1964); Bird v. State, 231 Md. 432, 190 A.2d 804 (1963).
The sole eyewitness, the station attendant, besides identifying the defendant at the trial, identified his automobile as the one parked at the service station and identified the plastic bag as the one in which the money, smelling of gasoline and oil, was carried away. Furthermore, the customer, who had recorded the license number of the automobile, identified the same vehicle on the impounding lot. This evidence, if believed, was sufficient to warrant the finding that the defendant was guilty. We cannot say therefore that the lower court was clearly wrong in believing the testimony produced by the State rather than that offered by the defendant. Spencer v. State, 235 Md. 129, 200 A.2d 643 (1964). See also Ponder v. State, 227 Md. 570, 177 A.2d 839 (1962).
The weight to be given to the courtroom identification of the defendant by the victim, in the light of his failure to identify him prior to trial and in the light of the testimony of the customer to the effect that the defendant was not at the scene of the holdup, was for the trial court to determine. Hicks v. State, 225 Md. 560, 171 A.2d 722 (1961). See also Hursey v. State, 233 Md. 243, 196 A.2d 472 (1964); Dyson v. State, 226 Md. 18, 171 A.2d 505 (1961), cert. den. 368 U.S. 968 (1962). The identification of an accused by a single eyewitness has often been held sufficient to sustain a conviction. Coates v. State, 232 Md. *362 72, 191 A.2d 579 (1963); Booth v. State, 225 Md. 71, 169 A.2d 388 (1961). Even without the courtroom identification, the evidence was sufficient to support the verdict.
Judgment affirmed.
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237 Md. 464 (1965)
206 A.2d 812
COSTELLO
v.
STATE
[No. 159, September Term, 1964.]
Court of Appeals of Maryland.
Decided February 9, 1965.
The cause was argued before HAMMOND, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.
Charles W. Bell, with whom were Bell & Bell and John T. Bell on the brief for appellant.
Stuart H. Rome, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Leonard T. Kardy and Charles Foster, State's Attorney and Assistant State's Attorney, respectively, for Montgomery County, on the brief, for appellee.
OPPENHEIMER, J., delivered the majority opinion of the Court. HORNEY, J., dissents. Dissenting opinion at page 474, infra.
The appellant contends that his sentence upon a conviction for assault was imposed in violation of constitutional and legal mandates. No question is raised as to the conduct of the trial or of his guilt or innocence.
The appellant was convicted of assault by a jury in the Circuit Court for Montgomery County on March 9, 1964. Judge Shure presided at the trial. After the verdict, sentence was deferred pending a pre-sentence investigation. On April 27, 1964, the appellant was called before Judge Shure in open court for sentencing. His wife and mother testified on his behalf, but no transcript of the record, or record extract, has been filed in this appeal. The appellant was represented by counsel at all stages of the proceedings. At the conclusion of the testimony, Judge Shure again postponed sentencing. After the completion of the pre-sentence investigation, which the Judge had requested, the appellant was again brought to *468 court for sentencing on May 13. There was an unreported conference between the judge and appellant's counsel at the bench. After the conclusion of the conference, the appellant was sentenced to the House of Correction for 360 days. On May 14, the appellant filed a motion for modification or reduction of sentence, with two affidavits, and a motion to release him on bond pending the hearing. On May 20, he filed a motion that Judge Shure disqualify himself from any further participation in the matter. A hearing on these motions was had in open court on May 22, at which the appellant and his wife testified. Judge Shure overruled both motions, but ordered the sentence to begin April 27, 1964, instead of May 13, the date of imposition of sentence. Thereafter, notice of appeal was filed and the appeal bond set at $3,000.
During the May 22 hearing, Judge Shure made a statement in respect of a controversy which had developed between appellant's counsel and the judge, which was referred to in the affidavits filed with the appellant's motions. The judge said, inter alia, that at the sentencing hearing on April 27, the appellant's wife in her testimony had given the court the impression that the appellant was a good husband and a law-abiding citizen, whereas the judge had received information to the contrary from a part-time Assistant State's Attorney who had represented the wife in his private professional capacity. Judge Shure referred to the offense of which the appellant had been convicted as "an extremely aggravated assault", and stated that the pre-sentence investigation made by the Department of Parole and Probation disclosed five convictions involving theft, disorderly conduct, drunkenness, and operating a motor vehicle while the license was revoked. The judge said further that the report revealed the appellant was charged with assault on his wife in February, 1964, although the warrant was later withdrawn. Judge Shure told the appellant that the conduct of his attorney had no effect whatsoever upon the court's judgment in respect of sentencing him. The appellant, after a prior conviction, had been given three years' probation, the judge noted, and said "the Court is convinced that the only way that you are ever going to be *469 straightened out is to serve these 360 days in jail." The court then ordered the sentence to begin from the earlier date.
The appellant contends that neither he nor his counsel was ever informed, prior to the court's decision, of the content and nature of the allegations made by counsel for the appellant's wife; that his requests to submit his wife for questioning and for a one day continuance made at the bench conference on May 13 were improperly denied; and that his request to inspect the pre-sentence investigation report was also improperly denied. He contends, further, that at the hearing on his motions for modification or reduction of sentence and for disqualification of Judge Shure, the trial court improperly denied the proffer of appellant's counsel to call Mrs. Costello's former attorney as a witness and the further request of his counsel to take the stand himself and to argue the motions. He claims reversible error in the denial of the motion for disqualification. The State contests each of these allegations, and contends that the appellant can not argue the validity of his sentence upon this appeal.
In support of its contention that the sentence here involved is not reviewable on appeal, the State cites Gleaton v. State, 235 Md. 271, 277, 201 A.2d 353 (1964), in which we reiterated the principle that, if the sentence is within the limits prescribed by law, it ordinarily may not be reviewed on appeal. There is no question here that the sentence is within the legal limitation. The appellant does not and could not claim that his 360 day sentence for assault constituted cruel and unusual punishment. Gleaton v. State, supra; Adair v. State, 231 Md. 255, 256, 189 A.2d 618 (1963). The appellant's contention, however, is that the procedure in the determination of the sentence, in the light of the circumstances involved, violated his constitutional right to due process of law. That allegation, if supported, is reviewable on appeal as an exception to the general principle. See Williams v. New York, 337 U.S. 241 (1949) and Ann. "Imposing sentence and procedural due process", 93 L.ed. 1345. The State contends further that, in any event, the Uniform Post Conviction Procedure Act, Code (1957) Article 27, Section 645 A(b) (1963 Supplement), provides that no direct appeal lies from *470 the denial of a motion by the trial court for modification or reduction of the sentence. We agree. Wilson v. State, 227 Md. 99, 100-101, 175 A.2d 775 (1961) and cases therein cited. However, because in this case the proceedings on the motion were closely related to those in the imposition of the sentence, and, as in Wilson, to avoid the delay and expense of a remand to permit the bringing up of the question on a petition for post-conviction relief, we shall indicate our views on the merits.
In our consideration of the merits, we are confined to what the record shows transpired. Maryland Rule 826 b, Yamin v. State, 204 Md. 407, 104 A.2d 588 (1954). As has been noted, we do not have the benefit of the transcript of the sentencing hearing on April 27. We can not consider the nature or content of any informal, off-the-record conversations between the trial judge and the appellant's counsel. Whether the conduct of his counsel was or was not proper is not an issue here involved. Similarly, the question of whether or not the former counsel for the appellant's wife violated any professional privilege in communicating information to the trial judge without his client's consent is not before us, except to the extent, if any, that the attorney's disclosure infringed any of the rights of the appellant.
The appellant contends that he and his counsel were improperly denied the opportunity to inspect the pre-sentence report prepared by the Department of Parole and Probation. The record does not show that a request for inspection was made, or, if it was made, that it was denied, or that the judge did not tell the appellant's counsel of the contents of the report. The appellant's contention in respect of the non-disclosure of the report can not now, for the first time, be considered. Maryland Rule 885. Bicknell v. State, 222 Md. 416, 417, 160 A.2d 608 (1960). In any event, as we said in Driver v. State, 201 Md. 25, 32, 92 A.2d 570 (1952), "[T]he procedure in the sentencing process is not the same as that in the trial process. It is a fundamental principle that a person accused of crime shall not be convicted unless he is given reasonable notice of the charge and an opportunity to be heard in his defense and to examine adverse witnesses. But *471 the sentencing judge may consider information, even though obtained outside the courtroom, from persons whom the defendant has not been permitted to confront or cross-examine. Murphy v. State, 184 Md. 70, 40 A.2d 239." 201 Md. at 32. See also Williams v. New York, supra.
The appellant relies upon the statement in Driver, 201 Md. at 32, that any information which might influence the court's judgment in imposing sentence which has not been received from the defendant or given in his presence, should be called to his attention or that of his counsel, so that he may be afforded an opportunity to refute or discredit it. However, the information here involved is contained in a pre-sentence report, and Maryland Rule 761 d specifically provides that such a report shall be subject to inspection by counsel "unless the court directs otherwise." The court, therefore, can refuse inspection in the sound exercise of its discretion. The presumption, here unrebutted, is that the court made proper use of the report. Driver v. State, supra, at 34. That presumption is fortified by the summary of the report given by Judge Shure at the May 22 hearing.
The appellant's grievances as to the sentencing procedure are largely based upon the use of the information volunteered by his wife's former attorney. Sparse as is the record, it is evident that at the sentencing hearing on April 27, the appellant's wife testified on his behalf to the effect that he was a good husband and father and that thereafter, before the imposition of sentence on May 13, the wife's former counsel (who, while an Assistant State's Attorney, did not participate in the appellant's trial) volunteered information to the contrary to Judge Shure. The appellant contends that the failure of Judge Shure to disclose this information to the appellant prior to sentencing constituted prejudicial error within the meaning of the Driver and the Williams cases, and that disclosure is clearly demanded by Maryland Rule 761 a, c and d. Even assuming that the provisions of the latter Rule are not limited to pre-sentencing investigatory reports, by his own affidavit, appellant's counsel admits that Judge Shure, at the unreported bench conference prior to sentencing on May 13, advised counsel of the substance of the allegations made by *472 the Assistant State's Attorney. Under such circumstances, we find no violation of the appellant's rights.
Whatever may have been the propriety or impropriety of the action of Mrs. Costello's former attorney, so much of this information as was a matter of record was clearly admissible against the appellant in the pre-sentence investigation, however procured. In the May 22 hearing, Judge Shure referred to the fact that the wife had sworn out a warrant against her husband for assault in the month preceding the trial. Although this warrant was subsequently withdrawn, the judge had the right to consider it, as to the credibility of the wife's testimony before him. The judge's statement indicates that it was the swearing out of the warrant which particularly influenced him as to the appellant's former conduct and his wife's veracity on the stand.
The complaint of the appellant that his wife was not permitted to take the stand to endeavor to rebut the statements made as to her husband's treatment of her is not supported by the record. She had testified at the April 27 hearing. An affidavit by her on this matter was filed with her husband's motion for modification or reduction of sentence on May 14, and she testified before Judge Shure at the hearing on that motion. Even though sentence had been imposed, the trial court has broad powers of modification within the 90 day period. Maryland Rule 764 b. Rule 761 a permits an accused or his counsel the opportunity to present information on mitigation of punishment, but this right was availed of at the hearing on April 27 and in the motions and affidavits filed thereafter. On the record, we find no prejudicial error in the refusal of the judge to permit the wife to testify at the May 13 hearing. See Henwood v. Superintendent, 215 Md. 607, 608, 137 A.2d 310 (1957) and cases therein cited.
Nor was there prejudicial error in the refusal of the trial judge to permit the appellant's counsel to call Mrs. Costello's former attorney to the stand or to testify himself. The court had before it the affidavits of both counsel; the sentencing procedure does not eliminate the discretion of the trial judge in the admissibility of such testimony, particularly when, as here, the contentions of the appellant, his wife and his counsel, *473 had been made clear to the judge. See Driver v. State, supra; Murphy v. State, 184 Md. 70, 83, 40 A.2d 239 (1944); and 1 Wigmore, Evidence, (3d ed.) Section 4, p. 25.
The granting or refusal of the continuance which the appellant's counsel states he requested at the bench conference on May 13 was within the sound discretion of the trial court. Peddersen v. State, 223 Md. 329, 337-38, 164 A.2d 539 (1960) and cases therein cited. No prejudicial abuse of discretion has been shown.
Appellant's contention that his counsel was not permitted properly to argue at the hearing on the motion to disqualify on May 22 is not supported by the evidence. The trial judge expressly permitted counsel to argue as to any matters on the record. As to alleged grounds not on the record, the judge had the appellant's motion and his counsel's affidavit before him, and had personal knowledge of the matters therein referred to.
Nor do we agree with the appellant that the trial judge committed reversible error in refusing to disqualify himself. We have emphasized the fundamental principle that a judge shall not preside in any case unless he is disinterested and impartial. Bd. of Medical Examiners v. Steward, 203 Md. 574, 581, 102 A.2d 248 (1954) and cases therein cited. We have also held that we can not engraft upon our Constitution a provision that a judge is disqualified because he has expressed his opinion as to the case. Co. Commrs. Charles Co. v. Wilmer, 131 Md. 175, 180-181, 101 A. 686 (1917). In this case, the motion to disqualify was made after the trial had taken place before the judge involved and after he had considered a pre-sentence investigation made at his request. Judge Shure made it clear to the appellant in the hearing on the motion to reduce sentence that the unfortunate altercation between the judge and the appellant's counsel had no effect whatsoever on the judge's action in respect of the appellant's sentence. No corroboration of that statement is needed, but the nature of the sentence, in view of the appellant's record and his offense, of itself indicates the dispassionate consideration which justice requires.
*474 We have considered all of the appellant's contentions, and find no violation of any of his constitutional or legal rights.
Judgment affirmed; costs to be paid by appellant.
HORNEY, J., filed the following dissenting opinion.
The majority, in considering the contentions of the appellant one by one, found, among other things, no prejudicial error in the refusal of the sentencing judge to afford the appellant an opportunity to refute or discredit the information the judge had received from the former attorney of the wife concerning the previous marital difficulties that had arisen between the appellant and his wife. The finding appears to have been based in part on the assumption that the sentencing judge was influenced only by the original presentence report and not by the information the judge subsequently sought and received from the wife's attorney and in part on the conclusion that the judge, having heard the testimony of the wife at the first sentencing hearing in mitigation of sentence, thought there was no reason for her to testify again at the second sentencing hearing in an attempt to rebut the information received from her attorney. In my opinion, however, the sentencing of the appellant under the facts and circumstances of this case was, as he contends, a violation of his right to procedural due process. Moreover, it is a question which is reviewable on appeal. Williams v. New York, 337 U.S. 241 (1949). Cf. Rowe v. State, 234 Md. 295, 302, 199 A.2d 785, 789 (1964).
While the procedures in the sentencing process are essentially different from those in the trial process in that the sentencing judge may ordinarily consider all information he receives, regardless of the source from which it came, there are limits to the use thereof beyond which the judge may not go. And should he do so, even unwittingly as was undoubtedly the case here, the judge will have abused his judicial discretion.
In Driver v. State, 201 Md. 25, 92 A.2d 570 (1952), after stating that the sentencing judge can exercise a broad discretion *475 in the use of sources and types of evidence to assist him in determining the kind and extent of punishment to be imposed, and setting forth the factors which the rules of procedure indicate the sentencing judge should consider to aid him in the intelligent exercise of his discretion, this Court, nevertheless, pointed out the limitations on the use of information received during the course of a presentence investigation. Besides the general prohibition against considering evidence that is not within the limits fixed by law, there is a specific requirement that any information that might influence the judgment of the sentencing judge, which was not received from the defendant himself or was not given in his presence, should (without necessarily disclosing its source) be called to his attention so as to afford him an opportunity to refute or discredit it.
The record in this case is far from satisfactory. Since, however, much of the substance of this controversy is the subject of affidavits filed on behalf of the appellant as well as the State, both of which were accepted as evidence in lieu of testimony the judge declined to hear, there is no reason why this Court should not take into consideration the same facts and circumstances it is apparent the lower court considered in imposing sentence. This would include such parts of the written and oral information the record discloses the sentencing judge received and considered as well as the pertinent events which occurred before and after the receipt thereof.
After his conviction for an assault on another man, the defendant was allowed to remain on bail pending the making of a presentence investigation by the county probation department. Following the completion and filing of the report, the defendant was twice called for sentencing. On one occasion (April 27, 1964), after the presentation of information in mitigation of sentence, including the testimony of the wife of the defendant to the effect that he had been a good husband and father, and a statement by counsel seeking probation under strict supervision, the judge deferred sentencing to give himself more time to further consider the question, but in the meantime placed the appellant in the custody of *476 the sheriff to meditate on the precariousness of his situation. The report, in addition to disclosing a series of prior offenses, for one of which he had previously been placed on probation, also informed the judge of an assault on the wife by her husband and the subsequent withdrawal by her of the warrant for his arrest. On the second occasion (May 13), the sentencing judge told counsel (apparently at the bench) that while the wife had given him the impression at the first hearing that the defendant had been a good husband, he had received information to the contrary from a part-time assistant state's attorney (who had not participated in the prosecution of this case) in the meantime and informed him of the substance of the allegations made by the part-time prosecutor. The judge, however, refused to permit either the wife or counsel to present further information in mitigation of punishment or to grant a one-day postponement for the purpose of preparing a rebuttal to the information furnished by the wife's former attorney, and forthwith sentenced the appellant to 360 days in prison. On the day sentence was imposed, the judge had asked the assistant state's attorney for, and had been given, detailed information concerning the marital difficulties of the appellant and his wife which he in his capacity as a private practitioner had acquired in consultations with the wife about bringing a divorce action against her husband. It appears that the judge refused to hear the wife again because he believed she had been untruthful at the first hearing. It further appears that the judge refused to permit counsel for appellant to present additional information or to grant a postponement for that purpose because he had then decided to sentence the appellant to prison as he stated he had been inclined to do as of the first sentencing hearing. Subsequent to the imposition of sentence, the appellant moved for modification or reduction of the sentence and for the disqualification of the sentencing judge. At the hearing of these motions (May 22), the wife was allowed to testify as to the visit of the probation officer and what she had told him, but she was not permitted to explain the information the judge had received from her former attorney or the information contained in his affidavit. Nor would the judge *477 permit the calling of the attorney for the purpose of examining him as to the contents of his affidavit. It was at these hearings that the judge stated the wife was not truthful when she testified under oath at the first sentencing hearing and that he had been ready to sentence the appellant to prison at that time. At these hearings, the judge also indicated that he did not consider the information received by him from the wife's former attorney to be confidential because she had waived the attorney-client relationship when she informed the probation officer as to the appellant having assaulted her. Although the sentencing judge further indicated at these hearings that it was the information set forth in the report of the investigation made by the probation department and not the information the judge received as the result of a subsequent investigation the judge himself initiated (as he had the authority to do) that induced the prison sentence of 360 days, the record makes it clear (see Appendix, p. E. 45) that it was the information the judge received from the wife's attorney that primarily influenced his judgment in imposing sentence. Both motions, following a lengthy and somewhat heated colloquy in open court between counsel for the appellant, the sentencing judge and the assistant state's attorney who prosecuted this case, were denied and this appeal followed.
Although the violation of the attorney-client relationship is one that could only be claimed or waived by the wife, that, in my opinion, does not mean that we are not here concerned with the propriety of receiving the privileged information insofar as its disclosure infringed any of the rights of the appellant. As to these points, there is authority for the proposition that evidence which would have had no probative value at the trial (as was the case here with respect to the alleged wife-beating for which the appellant was never tried and convicted) is not relevant in determining the sentence to be imposed. Cf. Ex Parte Hoopsick, 91 A.2d 241 (Pa. 1952). And there are cases which hold that statements which come under the ban of hearsay evidence should be disregarded in a presentence hearing. See, for example, State v. Pope, 126 S.E.2d 126 (N.C. 1962) and State v. Bodie, 49 S.E.2d 575 (S.C. 1948). In any case, even if it was not improper *478 for the judge to seek and the attorney to disclose the hearsay and privileged information, it is clear that the appellant should have been afforded an opportunity to rebut it. Driver v. State, supra (at p. 32 of 201 Md.), explicitly requires such a practice, as do a majority of courts in other jurisdictions. See, for example, People v. Giles, 161 P.2d 623 (Cal. 1945) [action of judge in receiving information as to bad character of defendant out of his presence was improper where the accusation influenced the judge in imposing sentence]; and Kuhl v. District Court, 366 P.2d 347 (Mont. 1961) [receiving information privately before sentencing as to prior record of defendant which had effect of influencing judge was improper]. See also 49 Colum. L. Rev. 567.
Not to allow the appellant an opportunity to rebut the information would seem to be a clear denial of procedural due process. While the sentencing judge has a wide discretion so far as the presentence investigation goes, it seems to me that his receipt of hearsay and privileged information which he himself sought was a clear abuse of discretion and a practice not contemplated by the rules.
In my opinion the facts and circumstances of this case compel a remand for a redetermination of the sentence without taking into consideration information improperly received. Cf. Farrell v. State, 213 Md. 348, 131 A.2d 863 (1957).
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237 Md. 545 (1965)
206 A.2d 807
SANSBURY
v.
DIRECTOR OF PATUXENT INSTITUTION
[App. No. 78, September Term, 1964.]
Court of Appeals of Maryland.
Decided February 15, 1965.
Before PRESCOTT, C.J., and HAMMOND, MARBURY, SYBERT and BARNES, JJ.
*546 SYBERT, J., delivered the opinion of the Court.
This is an application by Robert Talmadge Sansbury for leave to appeal from the denial of post conviction relief by the Circuit Court for Prince George's County.
On March 14, 1962, Sansbury pleaded guilty to storehouse breaking in the same court and was sentenced to serve an indeterminate period, not to exceed two years, beginning as of December 19, 1961, in the Maryland Reformatory for Males. On July 19, 1962, the court ordered his transfer to the Patuxent Institution for evaluation. At a hearing held on May 15, 1963, a jury found him to be a defective delinquent as defined in Code (1964 Cum. Supp.), Art. 31B, sec. 5, and he was committed to Patuxent. An application for leave to appeal from that determination was denied by this Court in Sansbury v. Director, 233 Md. 587, 195 A.2d 604 (1963). He was represented below and on the application for leave to appeal by court appointed counsel.
In December 1963 and January 1964 Sansbury, in proper person, filed a petition and a supplemental petition asking post conviction relief. Court appointed counsel filed a further supplemental petition on June 23, 1964. After a hearing on the three petitions, the circuit court denied the relief prayed.
In this application for leave to appeal from the order denying relief, Sansbury raises eight contentions. The first three, taken together, amount to a claim that he did not have counsel when he was convicted in two cases involving assault and unauthorized use of an automobile (which cases apparently were tried at about the same time he pleaded guilty to the indictment for storehouse breaking); that the lack of counsel invalidated the two convictions mentioned; and that therefore his commitment to Patuxent was invalid, upon the theory that the defective delinquency proceeding was based, in part, upon the two convictions. However, the record before us is silent as to the assault and unauthorized use cases. Rather, the record originates with the docket entries in the storehouse breaking case. Those docket entries, after reflecting the proceedings and sentence in that case, next show the proceedings in the defective delinquency case, and finally note the instant post conviction proceedings.
*547 The applicant's position is without merit. Counsel was appointed for him in the storehouse breaking case, and he pleaded guilty to the charge in the presence of his attorney. In fact, the applicant does not challenge the validity of that conviction. Storehouse breaking, a misdemeanor punishable by possible imprisonment in the penitentiary, is one of the offenses which subject the defendant, upon conviction, to defective delinquency proceedings under Code (1964 Cum. Supp.), Art. 31B, sec. 6(a). Therefore, regardless of the validity of the applicant's convictions of assault and unauthorized use, the civil court had jurisdiction to determine that the applicant was a defective delinquent under Art. 31B because of his valid conviction of storehouse breaking.
The fourth contention is that the judge who presided in the defective delinquency proceedings erred when, in the course of his instructions, he informed the jury that the defendant, if found to be a defective delinquent, could petition for review of his status from "time to time", whereas sec. 10(a) of the Act provides that petitions for redetermination may be filed only after the expiration of stated periods. This question is not properly before us, because post conviction proceedings may not be used as a vehicle of appeal from a determination of defective delinquency. Krs v. Director, 230 Md. 646, 187 A.2d 871 (1963). The issue could have been raised (but was not) in the application for leave to appeal from the determination reported in Sansbury v. Director, supra.
In his last four contentions the applicant challenges generally the constitutionality of the Defective Delinquency Act as interpreted and applied, relying upon the recent case of Sas v. State of Maryland, 334 F.2d 506 (4 Cir.1964). He requests this Court, in effect, to re-examine the statute and the procedures thereunder to determine whether it is being constitutionally applied. The Fourth Circuit in the Sas case held that the statute was constitutional on its face but remanded the case to the District Court for a determination, according to certain guidelines, of the constitutionality of its application. Although we may find it necessary to carry out such a re-examination in regard to some future case, we do not believe the contentions in the present application warrant such a reappraisal, since the *548 applicant does not specifically mention in which ways the statute is being unconstitutionally applied to him, but rather attacks its application generally. Thus, with respect to the issue of constitutionality, we have no justiciable issue before us. Cf. Freedman v. State, 233 Md. 498, 197 A.2d 232 (1964). We think our prior decisions upholding the constitutionality of the statute are controlling in this situation. McDonald v. Director, 236 Md. 642, 204 A.2d 563 (1964); Meredith v. Director, 226 Md. 653, 172 A.2d 501 (1961); Eggleston v. State, 209 Md. 504, 121 A.2d 698 (1956).
Application denied.
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86 N.J. Super. 308 (1965)
206 A.2d 779
STATE OF NEW JERSEY,
v.
MONROE ROBINSON, DEFENDANT.
Superior Court of New Jersey, Law Division.
Decided January 6, 1965.
*309 Mr. John J. Francis, Assistant Prosecutor of Essex County for the State (Mr. Brendan T. Byrne, Prosecutor, attorney).
Mr. Myron Mauer and Mr. Clive S. Cummis for defendant (Messers. Mauer & Mauer, attorneys; Mr. Cummis, of counsel).
*310 CAMARATA, J.C.C.
This is a motion by defendant Monroe Robinson to suppress certain evidence taken from a locker and an automobile.
The Essex County grand jury returned a three-count indictment charging defendant with larceny of silver of the value of $49,705.50 (first count), $2,348.70 (second count), and $1,997.93 (third count). The motion relates to evidence taken from a locker at the Engelhard Industries plant on New Jersey Railroad Avenue, Newark, New Jersey, and evidence taken from a 1963 Cadillac owned by defendant and parked in a public parking lot at a gas station. The evidence sought to be suppressed consists of pieces of silver, 8 in the locker at the plant and 11 in defendant's car. No search warrant had been issued or obtained.
From the testimony I find the essential facts to be as follows:
Defendant was for many years employed by American Platinum and Silver Division, a subsidiary of Engelhard Industries, in Newark, New Jersey. In November 1963 he was employed in the melting room.
There were three shifts operating in the melting room respectively starting at 6 A.M., 7 A.M., and 8 A.M. The one starting at 8 A.M. ended at 4:30 P.M. At the close of the working day there were pieces of scrap, and on top of these would be placed pieces of silver some 5 or 6 inches long, 3 1/2 inches wide, and about 1 1/2 inches thick. In addition to defendant there was a helper in the melting room with him.
On one occasion it came to the attention of one of the employees that some of these cast-off pieces were missing, and he reported this to his immediate superior, Mr. Nordstrom. After this an employee for three days (November 4, 5, and 6, 1963) placed pieces of silver on the top of the scrap. When he left at 4:30 P.M. on those days the pieces were there. On November 5 they were there at 6 A.M. but missing at 8 A.M.; on November 6 they were there at 6 A.M. but gone at 7 A.M. He reported this to Nordstrom. Nordstrom, in turn, told him to discuss this with Mr. Crego, the plant manager.
*311 Crego had been plant superintendent for some ten years prior to the time in question. From his testimony it appears there were lockers at the plant assigned to the several employees. Their purpose was that employees could keep their working and street clothes there because all melters change their clothes. Each employee received a key, and the company kept a master key. While there was no written agreement with an employee when hired as to who was to have access to the locker, it was the superintendent's recollection that the man was told he would be given a locker and a key, however, he was not sure whether the employee was told that the company also had a key. He was firm in his statement that the union knew the company had a key to the lockers.
The plant superintendent related the information he had received from the other employees to Mr. Elmer Thomas, attorney for Engelhard Industries. Thomas authorized a Mr. James J. Cotter to make an investigation. Cotter is a licensed private detective who in November 1963 had been with the Engelhard Industries for some eight years. On November 6 Cotter went to the floor where the lockers were located and unlocked all of them except defendant's. He said he was looking for silver, as described to him, and saw none. He already knew that defendant was under suspicion, having been told so by Thomas.
On November 7, between 5 and 6 A.M., Cotter was on the roof adjoining the melting building with a pair of binoculars. It was raining hard, and he observed the melting room through the binoculars. There were windows, but his observations were not made through them. He had to make his observations through a vent slowly turning in the wind. He could see one man working. He didn't know his name at the time, but subsequently identified him as defendant. The distance from the roof to the building was some 40 feet. Through the binoculars he saw defendant light a big hose which he later found out started the furnaces. He then saw defendant go outside the furnace room door for a few minutes and come back. He had something shiny in his hand and put this object *312 in the top of his overalls. It was about five inches long, three or four inches wide; it looked like a piece of silver he had seen on other occasions. He knew that this was what he was looking for. Another man then came into the furnace room, and at that point Cotter left the roof and went to the plant.
Cotter then asked someone not defendant for a pass key to defendant's locker. In the company of Mr. Forsythe, a uniformed guard, he went to the locker floor. Defendant was not there at the time. Thereafter they observed defendant go to his own locker and open it. Defendant apparently noticed Cotter and Forsythe; he twice took his wallet out, locked his locker and left. Cotter did not observe anything in the locker at the time. He then opened the locker with the master key and found three pieces of silver, 5 inches long and 3 1/2 inches wide, in the pockets of the overalls. He saw five more pieces on the bottom of the locker. He then locked the locker, and he and Forsythe went to see Thomas. Cotter did not carry a gun during this interval.
Thomas learned from Cotter what had been found in the locker. He talked to defendant about it, with the result that defendant, Thomas and Crego went to the locker where Forsythe and Cotter were. When Cotter asked defendant to open the locker he said that he did not have a key and had not had one for some time that he opened it without a key. But when defendant tried to open it by pulling the door, it did not open; and Cotter asked him, "If I get you a key, will you open the locker?" Defendant said something to the effect that he would.
Cotter then sent Forsythe for the master key. When he came back, Cotter handed the key to defendant, who opened his locker. Cotter told defendant to take everything out of the locker and put it on the table nearby, which he did. When defendant found the pieces of silver, he looked astonished and said he couldn't understand who had put them in his locker.
Defendant claims that Forsythe was in uniform all the time; that Forsythe told him to unlock the locker; that he *313 told Forsythe he had no key and had lost it; that Forsythe went to get the extra key; that when the defendant wouldn't unlock it, Forsythe said to him, "If you don't unlock it, we will go to headquarters and they will make you unlock it." Forsythe then gave him the key and he unlocked the locker.
When Thomas had questioned defendant, he also spoke to him about his car. Defendant denied that there was any silver in the car but said, according to Thomas, "You look at it if you want to." Both Cotter and Thomas say that when they all got to the gas station where the car was parked, defendant got the keys from an attendant, moved the car from a post, unlocked it, and together with Cotter pulled the silver pieces out. In the back of the car there was also a weighing machine which defendant said he used to weigh the silver so that when he sold it to somebody he wouldn't be "gypped." There were 11 pieces of silver in the back of the car. While he was observing what was in the back of the car, Cotter saw a locked green box a tool box. Defendant took one of a bunch of keys and opened it up. In it was a brown paper bag containing some money. Defendant told Cotter that the money came from the silver he had sold. Cotter asked him if it was Engelhard's money, and defendant said yes. He heard the defendant say that the currency was from the sale of the stolen silver.
It was company attorney Thomas' opinion that everything defendant said and did was voluntary. He testified that defendant had said he didn't know why he had done it.
Defendant denies he said anything about the car, except that he knew there was something in it. He testified he did not open the car right away, and again was told that headquarters was across the street; that if he didn't open the car, they would take him there and make him give up the key. He admitted having a key to the locker and that he had looked into the locker a little earlier, prior to the time Cotter opened the locker with his own key.
Cotter denies that he promised defendant anything at any time before the trunk was opened; and states that no one touched or threatened defendant, or in any way forced him to open the locker or the trunk of the car. Cotter admitted that *314 he called no enforcement agency. He stated that no search warrant was obtained because everything was done so quickly, and that if there was one to be obtained, it was up to the company's legal department.
Thomas corroborated Cotter's testimony. He, too, denies that he ever threatened defendant, promised him anything or coerced him; he told defendant that the silver was missing and asked him to help solve the problem, even though he knew when he was questioning the defendant what Cotter had found in the locker meaning the silver in the overalls and the silver at the bottom of the locker. This was before they went back the second time to open the locker.
On questioning by the court as to why he didn't get a search warrant for the car, Thomas explained that defendant was willing to go to the car; that he thought defendant was trying to clear himself of having taken anything from the plant; that no search warrant was obtained for the locker because all he wanted to do was to locate and retrieve the property the silver belonged to the company.
I believe the witnesses offered by the State were truthful and forthright. Not so with the defendant; I do not believe he told the truth.
There was produced before me a card identifying the detective and on the back was the wording required by N.J.S.A. 45:19-17. N.J.S.A. 45:19-8 through 27 are known as the Private Detective Act of 1939. N.J.S.A. 45:19-9(b) and (c), part of the definitions section, reads as follows:
"(b) The terms `the business of detective agency,' `the business of investigator' and `the business of watch, guard or patrol agency' shall mean any person, firm, association or corporation engaged in the private detective business as defined in subsection (a) of this section, who employs one or more persons in conducting such business.
(c) The terms `private detective' or `investigator' shall mean and include any person who singly and for his own account and profit conducts a private detective business without the aid or assistance of any employees or associates."
First, as to the status of Cotter and Forsythe I conclude that:
*315 (a) There was no evidence that Cotter or Forsythe was directly or indirectly connected with any local, county, state or federal law enforcement agency or government agency.
(b) Cotter was hired by the Engelhard Industries as a private investigator or private detective.
(c) Forsythe was employed by Engelhard Industries as a uniformed security guard.
Defendant contends that under the Federal and State Constitutions he is entitled to protection against an unreasonable search and seizure of the evidence taken from the locker and his car.
I.
(AS TO THE LOCKER)
I conclude that even though defendant had a key to the locker, the company also had a right to enter the locker because:
1. It was the company's property.
2. In the contract between the company and the union. of which defendant is a member, it was provided that the company retained a master key to the locker.
Defendant has no standing to object to the use of the evidence taken from the locker and to obtain its suppression merely because he was lawfully on the premises. In State v. Bibbo, 83 N.J. Super. 36 (App. Div. 1964), the court said:
"* * * One has no standing to object if the seizure has not invaded a `right of privacy of person or premises' which belongs to him personally or by extension a right which Maguire, supra, describes as `proprietary, possessory or participatory.'" (at p. 39)
Assuming defendant had a standing as to the locker, the question to be considered is does the exclusionary rule as enunciated in the landmark case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), apply?
The U.S. Supreme Court, in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), discussed evidence seized by other than police officers and held:
*316 "The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; * * *
In the present case the record clearly shows that no official of the federal government had anything to do with the wrongful seizure of the petitioner's property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting officers of the federal government. * * *" (at p. 475, 41 S.Ct., at p. 576; emphasis added)
Burdeau has not been overruled by Elkin v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961), or other cases. It was followed in United States v. Goldberg, 330 F.2d 30 (3 Cir. 1964), certiorari denied 377 U.S. 953, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964), where the court said:
"We think the documents and records were clearly admissible under Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. Here, certain of McDowell's business associates had taken from his safe, without his knowledge, certain documents and had turned them over to Government officials. * * * Here, the evidence established that no Government official had participated in or had been connected with the taking and that since the documents came into their possession without a violation of McDowell's rights by any Government authority the Government could retain them and use them as evidence." (330 F.2d, at p. 35)
In People v. Trimarco, 41 Misc.2d 775, 245 N.Y.S.2d 795 (Sup. Ct. 1963), defendant sought to suppress evidence alleged to have been obtained as a result of an unlawful search and seizure. The facts there were that defendant was forceably removed from an airplane by alleged security officers of the airport or airline, taken to a room where he was searched, and certain documents removed from his person. The security officer was an investigator for the airline and was not a *317 governmental officer or official. In denying defendant's motion the court relied upon Burdeau, supra, and cited People v. Randazzo, 220 Cal. App.2d 768, 34 Cal. Rptr. 65 (Ct. App. 1963), certiorari denied 377 U.S. 1000, 84 S.Ct. 1933, 12 L.Ed.2d 1050 (1964). In Randazzo the court examined both the federal and other state rulings wherein Burdeau had been cited, and concluded that Burdeau had not been overruled.
There is no New Jersey case similar to the instant one. However, the applicability of Burdeau was discussed in State v. Scrotsky, 39 N.J. 410 (1963). In that case the landlady went with the police officer to the apartment rented to the tenant. The State relied on Burdeau, but the Supreme Court held that case inapplicable under the facts, since the search and seizure resulted from unlawful concert of action on the part of the landlady and the police officers. It is to be noted that the court did not disagree with the contention of the State that:
"Consequently, where a private person steals or unlawfully takes possession of property from the premises of the owner and turns it over to the government, which did not participate in the taking, it may be used as incriminating evidence against the owner in a subsequent criminal prosecution." (at p. 416)
The decisions in Mapp v. Ohio and Burdeau were considered in the recent case of Sackler v. Sackler, 33 Misc.2d 600, 224 N.Y.S.2d 790 (Sup. Ct. 1962), reversed 16 A.D.2d 423, 229 N.Y.S.2d 61 (App. Div. 1962), affirmed 15 N.Y.2d 40, 255 N.Y.S.2d 83, 203 N.E.2d 481 (Ct. App. 1964). This case involved a civil action for divorce in which defendant's wife sought to suppress certain evidence of adultery obtained by her husband as a result of entry into her separately maintained apartment. The court held:
"* * * The Supreme Court's decision of 1961 in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 applying the Fourth Amendment is of course not controlling here or even applicable since its impact is on governmental seizures only and not on evidence illegally gathered by private persons. * * * See historical material in Boyd v. United States, 116 U.S. 616, 624-630, 6 S.Ct. 524, 29 L.Ed. *318 746 (1886). Never were those protections applicable to searches and seizures by any persons other than government officers and agents. Searches by `the government' only are covered, that is, `official acts and proceedings' and `invasions on the part of the government and its employees of the sanctity of a man's home and the privacy of life' (Boyd opinion, supra, pp. 623, 624, 630, 6 S.Ct., p. 532) * * *"
"* * * Neither history, logic nor law give any support for the idea that uniform treatment should be given to governmental and private searches, and to the evidence disclosed by such searches. * * *" (Emphasis added)
The foregoing cases cite and follow Burdeau.
I conclude that the exclusionary rule does not apply to the circumstances here and that Burdeau is applicable.
An employer has a right which it can lawfully exercise, as in the instant case, to obtain the return of its own materials, the silver pieces. Not to permit an employer to do so places him at the mercy of his employees. This should not, and cannot be permitted.
In the Randazzo case, supra, defendant was prosecuted for shoplifting. She had taken merchandise from the store and placed it in her purse while in the dressing room of the store where observation was made by a store detective not connected in any way with a state law enforcing agency. The court held the evidence admissible and not a denial of due process within the Fourteenth Amendment. It said:
"To hold that evidence obtained as it was in this case by employees of the store is not admissible in a trial of the defendant for her theft is in effect to give shoplifters a `license to steal' and places responsible business concerns virtually at their mercy. It would add untold millions to the already heavy losses that merchants throughout the country sustain annually from the prevalence of this nefarious practice. We cannot approve a procedure which makes such a result possible, absent statutory or other clear and specific authority. No such authority has been presented, and our own research has not produced any." (34 Cal. Rptr., at p. 70; emphasis added)
II.
(AS TO THE CAR)
Next to be considered is whether my conclusions as to the exclusionary rule relating to the silver taken from defendant's *319 locker apply equally to the silver and money taken from his car, located in the parking lot and not on Engelhard Industries property. I have concluded that they do and that the exclusionary rule does not apply.
While the fact that defendant was the owner of a car which was not on company property gives him the right to bring the within motion, State v. Bibbo, 83 N.J. Super. 36 (App. Div. 1964), nevertheless what took place as to the car was part of a chain of events and caused by defendant's actions in taking the pieces of silver, the property of his employer. Additionally, he opened the trunk and smaller box with his own key. This he did freely and voluntarily.
Defendant's motion to suppress the evidence taken from the locker and the car is denied. His attorney will submit an appropriate order, consented to as to form by the prosecutor.
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544 S.W.2d 752 (1976)
Jack BARRON and wife, Ina Barron, Appellants,
v.
Mrs. Charles PHILLIPS et al., Appellees.
No. 8453.
Court of Civil Appeals of Texas, Texarkana.
November 30, 1976.
*753 J. R. Cornelius, The Cornelius Law Firm, Jefferson, for appellants.
G. Brockett Irwin, Longview, for appellees.
CHADICK, Chief Justice.
This is a temporary injunction case. After a hearing in the court below, the trial judge denied relief. The judgment of the trial court is reversed and the case is remanded with instructions and temporary injunction, as prayed, is granted by this Court, pending issuance of this Court's mandate and the grant of relief by the trial court in accordance with instructions.
I
W. R. Pillion and Totsie Pillion, husband and wife, owners of an 8.93 acre tract of land in the John N. Robertson Survey of Marion County, Texas, conveyed a part thereof to Jack and Ina Barron, husband and wife. Conveyance was by warranty deed dated August 12, 1974, in which two tracts were described. The description of the first tract of land has a call "to a stake in said line for corner, said corner being on the West end or side of a 25 foot wide street or access road;" followed by this call, "Thence North 472.8 ft. with the West edge of said road to a stake for corner, same being the SEC of a 67/100 acre tract;...". The second tract description contained a call for a corner "same being on the East side of a 25 foot wide road or street;" followed by this call, "Thence South 113.7 feet with the East edge of said road to a stake for corner; ...".
In the course of negotiations between the parties to the deed a plat of the 8.93 acre tract owned by the Pillions was exhibited by them to the Barrons. A reproduction of *754 this plat, reduced in size, is incorporated herein as Exhibit 1. Though not described by lot numbers, the first tract conveyed describes the area of Lots 5, 6, 7 and 8 as they appear on the plat and the second tract describes the area of Lot 2 shown by the plat. The plat plainly depicts a 25 foot wide North-South strip running the length of the 8.93 acre tract separating Lots 1, 2, 3 and 4 from Lots 5, 6, 7, 8 and 9 and forming a boundary to one side of each lot. There is evidence the lots and access strip were staked off on the ground. The testimony is in agreement that the Pillions showed the plat to the Barrons as well as the staked subdivision, and that Mr. Pillion agreed to open the strip for access purposes and paid part of the expense of clearing, grading and making the strip suitable as a road. Shortly after the conveyance, the Barrons moved a mobile home onto the area represented by Lots 5 and 6 on the plat and erected a shop on Lot 8. Thereafter the strip was continuously used by the Barrons as an avenue of ingress and egress. After conveyance to the Barrons, the Pillions continued to operate a motel on Lot 1 and lived in a house nearby.
On the 21st day of June, 1976, the Pillions conveyed by metes and bounds description platted Lots 1 and 9 to Charles M. Phillips and Dewana Virginia Phillips, husband and wife. Conveyance was by warranty deed in which a vendor's lien was retained. The deed described two tracts. In the first tract's description there is a call for corner "same being on the East end of a 25-foot wide street" followed by this call, "Thence South 166.5 feet with said street to a stake for corner, same being the NWC of Lot No. 2 of the `Lake O' The Pines Addition';". The second tract's description had a call for a corner "on the West edge of a 25-foot wide street, and said corner being at the NEC of Lot No. 8 of the `Lake O' The Pines Addition';" followed by this call, "Thence North 196 feet with the WBL of said street to a stake on the SBL of Quasi-Public Road:".
The evidence is not clear but it appears that sometime after the Phillipses purchased the two lots from the Pillions, the Phillipses placed a trailer house in such a position that it either partially encroached upon or completely blocked the North end of the access road shown by the plat and household sewage water was discharged thereon, but apparently the Barrons managed to continue to use the strip for ingress and egress although the discharged water created a mud problem. Three or four days before this suit was filed, Mrs. Barron found the North end of the access road completely blocked and a sign saying "Private Property". Mrs. Phillips told her the road was private property and to stay out, threatening to sue Mrs. Barron and make her sorry if she used the road. A huge tree trunk was placed across the road and later the road was bulldozed to render it unusable and six or seven more tree trunks were placed in the area between Lots 1 and 9 as an impediment to the street's use. This effectively blocked the use of the access road as a way to and from the Barron property. Suit was filed October 19, 1976, and on the next day, October 20, 1976, the Pillions conveyed by warranty deed to the Phillipses the North end of the 25 foot access strip that lies between and had theretofore separated Lots 1 and 9.
II
In this case, as in all temporary injunction cases, the issue presented on appeal is whether the trial court abused its discretion in issuing or refusing a writ. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); 31 Tex.Jur.2d, Injunctions, Sec. 37, p. 89. The question turns, in this instance, on whether the Barrons showed themselves entitled to injunctive relief as a matter of law. 31 Tex.Jur.2d, Injunctions, Sec. 36, p. 88. Though all evidence adduced cannot well be set out, this Court is satisfied the material facts are undisputed and that under settled law the Barrons were entitled to the relief prayed.
*755 III
The early case of Oswald v. Grenet, 22 Tex. 94 (1858) set the general course of Texas law as it now pertains to private easements by estoppel, saying:
"... when once a way, street, etc., has been laid out on the soil, or on a map, and property has been purchased in reference thereto, the resumption of the street, or way, by the proprietor, would be an act of bad faith, and a fraud upon any interests acquired upon the faith of it being left open. Hence, it operates as an estoppel in pais of the owner, from exclusive use of the property, or indeed any use, which is inconsistent with the public use, to which it has been dedicated."
Development of the law may be traced through Harrison v. Boring, 44 Tex. 255 (1875); Lamar County v. Clements, 49 Tex. 347 (1878); Spencer v. Levy, 173 S.W. 550 (Tex.Civ.App. Austin 1915, writ ref'd); Dallas Cotton Mills v. Industrial Co., 296 S.W. 503 (Tex.Com.App.1927); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex. 1962), and Dykes v. City of Houston, 406 S.W.2d 176 (Tex.1966). The rule is now established that a vendee who purchases a lot with reference to a map or plat showing an abutting street acquires a private easement in such street regardless of whether it had even been opened or dedicated to the public. The vendee by virtue of the private easement has the right to keep the street open and to make reasonable use thereof.
IV
The rule as stated in Oswald v. Grenet, supra, and restated in many of the later cases does not require that the map or plat depicting a street or way be recorded or that it be referred to in the description of the land conveyed. In this instance, the verdor and vendee agreed that the Lake O' The Pines Addition plat was exhibited as a part of the sales negotiations between the Pillions and the Barrons. Oswald v. Grenet, supra, stands for the proposition that if the natural inference to be gained from the plat is that the way shown was to be left open as a way for public use it constituted a representation to that effect. The Pillions also acknowledged the nature of the twenty-five foot strip in the deeds both to the Barrons and the Phillipses. These references in the deeds are probably sufficient to show an implied dedication of the strip to the public but this opinion will not be lengthened by a discussion of that theory. It is sufficient to say that under this record the Pillions and those in privy with them, the Phillipses, are estopped to deny the Barrons the use of the strip as a roadway.
V
Disposition of this appeal will follow the pattern set by Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (1961), and Guerra v. McClellan, 243 S.W.2d 715 (Tex.Civ.App. San Antonio 1951, Mand. Overr.). As the previous discussion indicates, the Barrons, under settled law and undisputed facts, were entitled to a temporary injunction as a matter of right at the time the case was heard in the District Court. The judgment of the trial court is reversed and the case remanded to it with instructions that the temporary injunction prayed for be granted. In conformance with the procedure outlined in Guerra v. McClellan, supra, and Tex.R.Civ.P. 434, a temporary restraining order, as prayed, is granted by this Court. The relief granted shall be effective until the mandate of this Court is received by the court below and relief there granted in accordance with the instruction herein. The relief granted by this Court will require Mrs. Phillips to remove obstructions from the access road and order her to desist from damaging the road or obstructing the Barrons from using the road; the writ here granted will issue upon the Barrons filing a bond in the sum of $5,000.00 that complies with the provisions of the law and the rules of civil procedure.
CORNELIUS, J., not participating.
*756
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152 Conn. 352 (1965)
JOSEPH P. WILUSZ
v.
HOWARD S. IVES, HIGHWAY COMMISSIONER
Supreme Court of Connecticut.
Argued December 3, 1964.
Decided January 26, 1965.
KING, C. J., MURPHY, ALCORN, COMLEY and SHANNON, JS.
*353 Joseph P. Wilusz, pro se, the appellant (plaintiff).
Frederick D. Neusner, assistant attorney general, with whom, on the brief, were Harold M. Mulvey, attorney general, and Milton H. Richman, assistant attorney general, for the appellee (defendant).
ALCORN, J.
On April 20, 1960, the defendant, the highway commissioner, took 10.31 acres of the plaintiff's land for highway construction purposes, and thereafter, on May 27, 1960, took an additional.19 acre for the same purposes. The defendant assessed damages for the entire taking at $3900. The plaintiff appealed to the Superior Court, claiming that the damages assessed were inadequate. A motion to amend the appeal to attack the legality of the taking was filed but was not pursued, and the trial court took no action on it. The case was referred to a state referee, who heard the evidence pursuant to § 13-150 of the General Statutes (now *354 § 13a-76) and found the plaintiff to be entitled to damages of $11,000. The plaintiff moved to correct the referee's report. Certain corrections were made by the referee, and the court overruled the plaintiff's objections to the amended report, accepted the report as amended, and rendered judgment thereon.[1] The plaintiff has appealed from the judgment. He requested a finding, but the court properly made none, since it had heard no evidence. Sorensen v. Cox, 132 Conn. 583, 587, 46 A.2d 125.
The plaintiff was represented by counsel at all stages of the appeal through and including the referee's correction of his original report. Beginning, however, with the filing of objections to the acceptance of the referee's amended report, the plaintiff undertook to handle the case personally, without the assistance of counsel. From that point on, the proceedings have become understandably and unnecessarily complicated. A number of motions have been made in this court by the plaintiff and have been decided. Wilusz v. Ives, 152 Conn. 725, 203 A.2d 674; s.c., 152 Conn. 730, 204 A.2d 168. Numerous other motions made to this court were pending when the appeal came on for argument, and these motions we consider in the footnote.[2]
*355 Of the plethora of errors assigned, some are inaccurately stated, repetitious, abandoned, or concerned with matters not in issue in the case. We construe the issues which the plaintiff is attempting to raise to be that the damages awarded in the judgment are inadequate in that the referee erred (a) in failing to take into account the presence of valuable deposits of sand and gravel in the land taken, (b) in considering the cost of installing drainage pipes as a separate item of damage, (c) in failing to include damages for the potential flooding of the plaintiff's land in future storms, (d) in failing to compensate the plaintiff for the landlocking of some 34.6 acres of his remaining land, and (e) in refusing to allow a witness produced by the plaintiff to testify concerning the gravel deposits in the land.
*356 The land taken was a portion of 125 acres owned by the plaintiff on which he conducted what is described as a marginal farming operation. The property has been used by the plaintiff over the years for cutting wood, farming and the sale of sand and gravel. Beyond this usage, the plaintiff has, to some extent, used gravel and fill from the land in grading and constructing driveways for others. The highway for which the land in issue was taken bisects the plaintiff's land, and it is the plaintiff's contention that the construction of the highway interferes with the free access which he formerly had to all of his land and has left about 34.6 acres landlocked. The plaintiff claims, further, that the construction has subjected his remaining land to drainage from the highway and has created a diking situation which will subject him to flooding in future storms.
The referee found that the taking does bisect the plaintiff's land and has resulted in some depreciation in value. He found that the access to 34.6 acres of the land was partially destroyed but was reinstated when the state took an additional .19 acre and constructed a fifty-foot road on it which gave the plaintiff access to the area. The .19 acre thus referred to was the land taken by the defendant on May 27, 1960, as stated above. The referee found that the highway did drain water onto the plaintiff's land but that this condition did not appear to be serious. He found further that the plaintiff's house was not taken but would be depreciated in value because of the proximity of the highway, and that the well supplying water to the house would have to be relocated. A large shed or chicken coop which was used by the plaintiff when he raised chickens was taken. The referee concluded that the value of the *357 land taken amounted to $5250, that the plaintiff's dwelling house was depreciated $1000 in value, that the barn or chicken coop taken had a value of $1500, that the cost of digging a new well would be $1500, and that the bisecting of the farm and the drainage onto the 34.6 acres north of the highway would depreciate the value of that portion by $50 an acre, or a total of $1730. The sum of these items, $10,980, was rounded out by the referee to $11,000, and the court accordingly awarded damages in that amount.
We consider first the plaintiff's claim that the referee failed to take into account the presence of deposits of sand and gravel on the land taken. It is clear that the presence of any such deposits properly enter into the determination of the market value of land taken for a public purpose. Hollister v. Cox, 131 Conn. 523, 526, 41 A.2d 93. While the referee's report does not specifically mention deposits of sand and gravel, it appears that two real estate appraisers offered by the plaintiff did consider the sand and gravel deposits in computing the market value of the land and that the valuation placed by one of these appraisers on the whole ten and one-half acres taken was only $215 more than the value found by the referee. The conclusion seems obvious, therefore, that the referee did not overlook the presence of sand and gravel deposits in the acreage taken in arriving at his estimate of fair compensation.
The referee indicated in his report that installation of drainage pipes at a cost of $30,000 would be unwarranted. Consequently, he disallowed it. The plaintiff claims that the referee erred in considering this item separately rather than as an element entering into the market value of the land. The plaintiff is in no position to make this complaint *358 since it appears that he attempted, by his own witness, to induce the referee to treat the solution of the claimed drainage problem as a separate item rather than as an element affecting market value. The referee concluded, as already indicated, that the drainage condition did not appear to be serious and that the bisecting of the land and the drainage onto 34.6 acres of it would depreciate the value of that portion by $50 an acre. The referee thus considered the seriousness of the drainage problem and its effect on the value of the 34.6 acres. This item, along with the other items which the referee enumerated in his report, made up the differencebetween the market value of the plaintiff's whole tract as it lay before the taking and the market value of what remained of it after the completion of the public improvement. Andrews v. Cox, 127 Conn. 455, 457, 17 A.2d 507. The method adopted by the referee for reaching his ultimate conclusion embraced the elements of damage claimed by the plaintiff and therefore was not harmful. Sorensen v. Cox, 132 Conn. 583, 586, 46 A.2d 125.
The plaintiff's third claim is that the referee erred in failing to include damages for the possible future danger from the backing up of flood waters in arriving at his estimate of the market value of the property remaining after the construction of the highway. The claim was based on a possibility which the plaintiff's own expert conceded was remote. The referee could reasonably have concluded that the possibility of danger from this source was too speculative to be considered. Harvey Textile Co. v. Hill, 135 Conn. 686, 688, 67 A.2d 851; Gabriel v. Cox, 130 Conn. 165, 169, 32 A.2d 649. We discuss this claim to this extent because of the peculiar circumstances of the present case, even though the *359 plaintiff is making the claim for the first time on this appeal. The plaintiff did not object, in the trial court, to the referee's report on this ground.
The plaintiff's fourth claim is that the referee erred in finding that 34.6 acres of his remaining land was not landlocked. The referee's finding concerning this matter has been stated above. The burden of the plaintiff's claim seems to be that, since the fifty-foot access strip which the defendant provided was never conveyed personally to him and was not properly a part of the state highway system, this means of access, although it now exists, could at any time be taken from him. The defendant offered evidence that the access roadway had been made a part of the state highway system and that the 34.6 acres were accessible by the use of it. The referee was entitled to believe this testimony, and consequently his conclusion is not open to attack. Housing Authority v. Pezenik, 137 Conn. 442, 445, 78 A.2d 546; Dion v. Dion, 128 Conn. 416, 417, 23 A.2d 314.
The plaintiff's final claim is that the referee erred in refusing to allow Weldon Parris to testify concerning the quality of the gravel deposits on the plaintiff's land. Parris was a land surveyor and conceded his inability to qualify as an expert on the mineral content of soil. The referee was justified in excluding this testimony. The ruling loses significance in any event since, as already indicated, the plaintiff's real estate experts, who did testify, considered the sand and gravel content of the land in stating their opinions as to the value of the land.
There is no error.
In this opinion the other judges concurred.
NOTES
[1] The referee's failure to number the paragraphs of his report is a practice which we have discountenanced. Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 139 n., 204 A.2d 833.
[2] On November 9, 1964, the plaintiff moved to amend his assignment of errors, to assert error in the failure of the referee to view the premises. See General Statutes §§ 13-150, 13a-76. The plaintiff did not raise this issue in the trial court, and the motion therefore seeks to raise an issue not ruled upon and decided below. The motion is denied. Practice Book § 652.
On November 9, 1964, the plaintiff moved for a continuance in order to permit the joinder of this appeal with an appeal in a case pending in the Superior Court and in order to rectify his appeal as requested in a motion filed in the trial court. On November 12, 1964, the plaintiff filed another motion to join this appeal with the case pending in the Superior Court referred to in the motion of November 9. On November 12, the plaintiff filed another motion for a continuance pending decision on a motion to correct filed with the referee and on the motions to amend his assignment of errors and to join appeals filed in this court. Another ground for the continuance is to permit the printing of a remonstrance to the acceptance of the referee's report, but no such remonstrance appears in the file. These various motions are denied. The case with which the plaintiff would join this appeal does not appear to have gone to judgment in the trial court. The motion to correct filed with the referee was improperly addressed to the referee subsequent to final judgment. The motions made to this court are decided.
On November 12, 1964, the plaintiff filed a motion for rectification of the appeal with the trial judge, and the motion was granted in part on November 25. The resulting corrections and additions are minor, available to this court in the file, and do not materially affect the issues on this appeal.
On November 25, 1964, the plaintiff filed a motion to review the partial rectification of appeal by the trial court on the ground that the court failed to act on the motion to rectify on the day it was heard. The motion was granted, in part, the next day, and the motion for review is moot.
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544 S.W.2d 295 (1976)
CITY OF KANSAS CITY, Respondent,
v.
Maurice L. TROUTNER, Appellant.
No. KCD 28202.
Missouri Court of Appeals, Kansas City District.
November 29, 1976.
*296 Roy W. Brown, Kansas City, for appellant.
Aaron A. Wilson, City Atty., Louis W. Benecke, Walter J. O'Toole, Jr., Asst. City Attys., Kansas City, for respondent.
Before SHANGLER, P. J., and SWOFFORD and SOMERVILLE, JJ.
SHANGLER, Presiding Judge.
The defendant was found by a police officer fast asleep behind the wheel of his camper-truck on a private parking lot adjacent to the city street with the engine still active and the transmission engaged in the park position. The head of the defendant was tucked upon his chest, right arm draped over the steering wheel, and his right hand clutched $200 in currency. The defendant awoke only after some physical effort by the officer to revive him to consciousness. Inquiry disclosed that defendant had come from a tavern close by where he had consumed some ten beers during the better part of the day. When he left the tavern, he sensed he was too tired to drive, so he fell asleep in the truck cab until he was aroused by the officer an hour later. A strong odor of alcohol pervaded his breath; his test for balance proved only fair; his eyes were bloodshot and glassy.
The defendant was arrested for being in physical control of a motor vehicle while under the influence of intoxicating liquor in violation of Kansas City Ordinance § 34.116. He was fined $100 in the circuit court and takes this appeal.
The defendant does not challenge that the evidence shows he was intoxicated but only that, for various reasons of law, neither the charge nor conviction may stand.
*297 The defendant was charged under Ordinance § 34.116:
It is unlawful for any person who is under the influence of intoxicating liquor to operate or be in actual physical control of any vehicle within this city.
The information [in the form of a Missouri Uniform Traffic Ticket] under which he was convicted reads:
[The defendant] . . . did unlawfully operate [the vehicle previously described] within the city limits and then and there commit[ted] the following offense: In physical control of a motor vehicle while under the influence of intoxicating liquor in violation of [ordinance] section 34.116 . . .
The defendant makes the point that the information is duplicitous and can be read to charge both the operation and being in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The ambiguity of such a statement, he complains, makes defense uncertain and preparation unsure.
As a general principle no more than one offense may be charged in one count, but when the ordinance prohibits several offenses disjunctively or alternatively, but not inconsistently as to substance or penalty, those offenses may be joined conjunctively in one count of an information and that count will be sustained upon proof of any of the offenses. City of St. Louis v. St. Louis Theatre Co., 202 Mo. 690, 100 S.W. 627, 628[1] (1907). If we assume the contention of the defendant that the information accuses him of both the operation and physical control of the motor vehicle while intoxicated, such offenses do not charge inconsistent conduct, and because they derive from an ordinance which describes the offenses disjunctively, the information stands as a valid accusation as to both.
There is moreover, a less strict requirement for pleading a violation of a city ordinance, which is in the nature of a civil proceeding, than for a criminal case. Thus, an information which charges in the language of the ordinance and gives notice to the defendant of the offense is sufficiently definite to bar any subsequent prosecution based upon the same conduct. Kansas City v. Stricklin, 428 S.W.2d 721, 725[10-12] (Mo. banc 1968). The cases cited by defendant on his contention that the information lacks definiteness, Kansas City v. Franklin, 401 S.W.2d 949 (Mo.App.1966) and City of Poplar Bluff v. Meadows, 187 Mo.App. 450, 173 S.W. 11 (1915), are not relevant. Franklin was overturned because the information did not charge the intoxicated driving was of a motor vehicle nor that defendant was the driverboth requirements of the ordinance. Poplar Bluff sustained an information which charged defendant with keeping a house of ill fame despite the failure of the information to recite the names of those who practiced there.
In practical terms, there can be no doubt that the defendant understood the charge against him and pleaded without uncertainty. At the outset of the trial, the court announced: "[T]he violation is in physical control of a motor vehicle while under the influence of intoxicating liquor", to which his counsel promptly replied: "[T]he plea, your Honor, is not guilty."
The second point on this appeal is assignment of error to the denial of the motion to dismiss on the ground that ordinance § 34.116 violates numerous statutes and provisions of State and Federal Constitutions.
A municipal corporation is required by § 71.010 to conform its ordinances to the state law on the same subject. Another statute, § 82.300, grants municipal corporations of a population class, within which Kansas City falls, to enact ordinances to preserve order, promote the general interest and insure good government. § 304.120 authorizes a municipality to enact traffic regulations consistent with the provisions of that chapter. Finally, § 564.440 provides: "No person shall operate a motor vehicle while in an intoxicated condition." Violation is punishable as a misdemeanor. Actual physical control of a motor vehicle by a *298 person while intoxicated is not prohibited by the terms of this statute.
A municipal ordinance must be in harmony with the general law of the state upon the same subject, otherwise it is void. Kansas City v. LaRose, 524 S.W.2d 112, 116[6] (Mo. banc 1975). The defendant contends that Ordinance § 34.116 conflicts with statutory § 564.440 because the ordinance proscribes both the operation and actual physical control of a motor vehicle by an intoxicated person whereas § 564.440 prohibits only the operation of the vehicle by a person in such condition. The defendant argues that because the ordinance goes beyond the statute and prohibits conduct not prohibited by statute, a conflict results and renders the ordinance invalid.
A similar argument was made in Kansas City v. LaRose, supra, where the statute interdicted willful interference with a sheriff in the course of his duties, while the ordinance prohibited similar conduct but did not require that the interference be knowing and willful. The court found no conflict, l.c. 117[9]:
Where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot co-exist and be effective.
LaRose found that any violation of the statute would also be a violation of the ordinance, thus the enactments were entirely consistent. That an ordinance enlarges on the provisions of a statute by the exaction of additional requirements creates no conflict, unless the statute is preclusive, an intendment which does not appear from enabling § 564.440. State ex rel Hewlett et al v. Womach, 355 Mo. 486, 196 S.W.2d 809, 815[10, 11] (banc 1946).
The ordinance under which defendant Troutner was convicted treats physical control as a necessary incident of actual operation of a motor vehicle and merely extends the prohibition of the statute to that continuous activity.
The defendant contends also that ambiguity invalidates Ordinance § 34.116 in that the provision which renders it unlawful for an intoxicated person to operate or have physical control of any vehicle "within this city" does not define the sphere of application, whether to the public streets or private property, and if to private property, then the ordinance also violates constitutional principles. We restate these arguments only approximately because they are neither stated nor developed with the required clarity and amplitude.
The contention that the municipality does not have power to extend the sanction of § 34.116 to private property cannot be supported. The question, in different form, was considered in Bellerive Investment v. Kansas City, 321 Mo. 969, 13 S.W.2d 628 (Mo.1929). The court considered the power of Kansas City to enact an ordinance which limited the number of automobiles that could be kept in a building occupied for living or sleeping quarters, and affirmed such an exercise against the contention of constitutional infringement, 13 S.W.2d l.c. 634:
It has been definitely and clearly established and settled . . . that a statute or a municipal ordinance, which is fairly referable to the police power of the state or municipality, and which discloses. . . to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants. . . does not contravene or infringe the several sections of the state and federal Constitutions . . ..
The questions presented, then, are whether § 34.116 fairly refers to the police power of the municipalitythat is, does it design to ensure the health, safety and welfare of the city populaceand is there a rational relationship *299 between actual physical control of a motor vehicle on private property by an intoxicated person and the health, safety and welfare of the municipal populace? That answer must be found in the purpose of the legislation and the danger at which it is directed. R. A. Vorhof Construction Co. v. Black Jack Fire Protection District, 454 S.W.2d 588, 595[5-7] (Mo.App.1970).
A motor vehicle is regarded as a source of danger when operated carelessly or by one whose responsiveness is diminished by intoxication. Physical control is a necessary prelude to the operation of a motor vehicle upon the public streets. It is a rational surmise that one in the physical control of a motor vehicle paused temporarily on a private parking area which enters upon and immediately adjoins a public street intends to resume public travel. The exercise of police power which validates the ordinance which prohibits an intoxicated person from operation of a motor vehicle, therefore, validates the prohibition against a person in such condition from physical control of the instrumentality. In each case, the prohibition is directed against the danger to the municipal populace such conduct presents.[1] At the very least, the reasonableness of the application of such an ordinance as § 34.116 is fairly debatable, in which event the judicial judgment cannot serve as a substitute for that of the legislative body charged with that primary determination. R. A. Vorhof Construction Co. v. Black Jack Fire Protection District, supra, l.c. 595[5-7].
The defendant cites two cases, neither of them in point. In State v. Julow, 129 Mo. 163, 31 S.W. 781 (Mo.1895) the court found unconstitutional a statute which made it unlawful for an employer to contract with an employee to require withdrawal by the employee from a trade union and prohibited him from joining such an association. Julow is not pertinent because the statute was not an exercise of the police power of the state, that is, there was no purpose to promote the public health, welfare or safety.
The other citation, City of Carthage v. Block, 139 Mo.App. 386, 123 S.W. 483 (Mo. App.1909) involved an ordinance that prohibited the consumption of intoxicating liquor [l.c. 483] "in any stairway, areaway. . . or on any sidewalk in the city of Carthage". The court struck down the ordinance because the prohibition extended to private areas not open to the public. City of Carthage, supra, does not bear on the issue here because the rationale of the decision was not simply that the ordinance regulated activity on private property but because the public morals would not be adversely affected by such activity on private property. The analogy this case offers suffers because, arguably, there is a rational relationship between physical control of a vehicle on private property by an intoxicated person and the public safety.
The more proper analogy is between § 34.116 and § 564.440 which enables that ordinance. The statute is not a road regulation but a prohibition against the operation of a motor vehicle by an intoxicated person. State v. Pike, 312 Mo. 27, 278 S.W. 725, 727[4] (1925). Thus, for conviction under the statute there is no requirement of proof that the motor vehicle was operated on a public way. State v. Barker, 490 S.W.2d 263, 270[5] (Mo.App.1973). The ordinance has a similar regulatory scope.
The final contention asserts that the ordinance term "being in actual physical control", without more definition, is vague and ambiguous and therefore invalid as a standard of conduct. The argument on this point is neither developed nor supported by any authority. Our own courts appear not to have defined the term, but other jurisdictions have done so persuasively. State v. Ruona, 133 Mont. 243, 321 P.2d 615 (1958) applied a statute comparable to Ordinance § 34.116 to facts of striking similarity to *300 those we confront. That defendant was found in his automobile partially parked upon a public street. The engine was running; he was slumped over the steering wheel unconscious and intoxicated. The Montana statute under which he was prosecuted rendered it unlawful for any person under the influence of intoxicating liquor "to drive or be in actual physical control of any vehicle within the state". The defendant contended that the term "actual physical control" was so vague and uncertain in meaning as to be impossible of definition. The court rejected the contention and accorded the statute the common dictionary meaning, l.c. 618[2, 3]:
Using the term in "actual physical control" in its composite sense, it means "existing" or "present bodily restraint, directing influence, domination or regulation." Thus, if a person has existing or present bodily restraint, directing influence, domination or regulation, of an automobile, while under the influence of intoxicating liquor he commits [an offense] within the [statute].
We adopt the conclusion of the Montana Supreme Court, as have other jurisdictions, that actual physical control of a vehicle results, even though the machine merely stands motionless, so long as a person keeps the vehicle in restraint or in a position to regulate its movements. See, also, Parker v. State, 424 P.2d 997 (Okl. 1967); Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1975); State v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954).
The judgment is affirmed.
All concur.
NOTES
[1] The evidence does not show the appurtenant use of the parking area, but only that it was privately owned. We consider § 34.116 a reasonable regulation to protect, not only persons upon a public street, but also those upon private parking areas used by the public, such as commonly found appurtenant to supermarkets, shopping centers and other commercial enterprises.
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846 S.W.2d 84 (1992)
Melvin DAVIS and Beverly Davis, Appellants,
v.
Glen MATHIS and Dallas Area Rapid Transit, Appellees.
No. 05-90-01455-CV.
Court of Appeals of Texas, Dallas.
December 16, 1992.
*85 James Bank, Dallas, for appellants.
Hyatte O. Simmons, Dallas, for appellees.
Before STEWART, BURNETT, and WHITTINGTON, JJ.
OPINION
STEWART, Justice.
This appeal arises out of a suit for tort damages brought by Melvin and Beverly Davis against a governmental unit of the State of Texas, Dallas Area Rapid Transit (DART), and its employee, Glen Mathis. The case proceeded to trial before a jury and, at the conclusion of the evidence, the trial court directed a verdict in favor of Glen Mathis and DART. In two points of error, Melvin and Beverly contend that the trial court erred in granting directed verdicts on the ground that they failed to comply with the statutory notice requirement of the Texas Tort Claims Act; in their third point, Melvin and Beverly contend that the trial court erred in refusing to rule on their motion to set aside judgment. We overrule all three points and affirm the judgment of the trial court.
*86 FACTS
The only evidence presented at trial was the testimony of four witnesses. In addition to Melvin and Beverly's testimony, plaintiffs presented a witness to the accident, Deborah Burkhalter. The defense presented the testimony of the bus driver, Glen. On October 11, 1986, Melvin and Beverly were taking Melvin to work when their car ran into the back door of a DART bus at the intersection of Commerce and Lamar in Dallas, Texas. Melvin was driving and they were traveling east on Commerce approaching the intersection. Melvin testified that the light on Commerce was green and, as he was proceeding through the intersection, he suddenly noticed a Dart bus, traveling southbound on Lamar, run through the intersection. Melvin stated that before he could stop, he ran into the back of the bus. Melvin also said that their light was green for the traffic traveling east on Commerce and that, from his location, he could not see the traffic lights on Lamar for traffic traveling southbound on Lamar.
Beverly testified that at 6:00 a.m., she and Melvin were coming into downtown on Commerce. She stated that the light on Commerce was green. She testified that, as they were going through the intersection, the bus came from behind a building and that it was a matter of seconds before their car collided with the bus. Beverly stated that the road was slippery because it was drizzling that morning.
Deborah testified that she was traveling east on Commerce in the lane to the right of Melvin and Beverly. She testified that the Commerce light was green and that, as she proceeded through the intersection, she had to swerve up on the sidewalk to avoid being hit by the bus. She stated that she knew the bus belonged to DART because its buses are yellow. She testified that Melvin and Beverly's car hit the rear door of the DART bus and that the car was banged up in front. Deborah also testified that the police were present at the scene and that she gave the officer a statement.
Glen, the driver of the bus, testified that, at the time of the accident, he had just turned left off of Main onto Lamar traveling south on Lamar. He stated that the speed limit is thirty miles per hour and that he was going ten miles per hour. Glen testified that, as he approached the intersection of Commerce and Lamar, his light was green on Lamar, so he went through the intersection. As he got his bus about thirty feet through the intersection, the back of the bus was struck by Melvin and Beverly's car. Glen testified that he did not see Beverly and Melvin's car approaching, nor did he ever see their car until he heard the crash.
STANDARD OF REVIEW
In reviewing the granting of a directed verdict, an appellate court must consider all evidence in the light most favorable to the party against whom the instructed verdict was granted and disregard all contrary evidence and inferences. All evidence supporting the non-movant's allegations must be accepted as true, and only when no fact issue remains for the trier of fact to decide will the verdict be allowed to stand. Qantel Business Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303-04 (Tex.1988); C.S.R., Inc. v. Industrial Mechanical, Inc., 698 S.W.2d 213, 216 (Tex. App.Corpus Christi 1985, writ refd n.r.e.). Thus, a verdict should be directed in favor of a defendant only where the plaintiff fails to present evidence in support of a fact essential to his right to recover or where a defense against the plaintiffs cause of action is conclusively proved or admitted.
ACTUAL NOTICE
In their first point of error, Melvin and Beverly contend that the trial court erred in directing a verdict for Glen based on their alleged failure to comply with the statutory notice requirement of the Texas Tort Claims Act. In their second point of error, they contend that it was error for the trial court to direct a verdict for DART for the same reason. Because our holding on the second point is necessary to the disposition of the first point, we address their second point first.
*87 As a governmental unit, DART was entitled to receive notice of Melvin and Beverly's claim. Tex.Civ.Prac. & Rem.Code Ann. § 101.101 (Vernon 1986). Section 101.101 provides:
(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
* * * * * *
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.
Tex.Civ.Prac. 101.101. The parties agree that the burden was on Melvin and Beverly as plaintiffs to show that DART received timely formal or actual notice of their claim because DART filed a verified answer specifically denying receipt of either type of notice. It is also undisputed that Melvin and Beverly did not give DART formal notice within the required statutory time period; hence, the controlling question is whether Melvin and Beverly introduced any evidence that DART received actual notice. Melvin and Beverly assert that the property damage to their car, Glen's knowledge of the collision, and the police investigative report comprise ample evidence from which a jury could reasonably infer that DART had actual notice of their claim. DART asserts that, as a matter of law, Melvin and Beverly failed to present any evidence that DART received notice of their injury, and, therefore, the trial court did not commit error in directing a verdict for DART.
Melvin and Beverly first contend that whether DART received actual notice of their claim is an issue of fact to be submitted to the jury. Alvarado v. City of Lubbock, 685 S.W.2d 646, 649 (Tex. 1985). In Alvarado, the supreme court did not hold that a trial court could not grant judgment on the issue of actual notice if there was no evidence or insufficient evidence of actual notice to a governmental unit; instead, it articulated the general rule that the existence of a governmental unit's actual notice of a claim is a fact issue. Id. If there is no evidence to show the existence of actual notice, a directed verdict on the issue is proper. Qantel, 761 S.W.2d at 304.
Next, Melvin and Beverly assert that the testimony was clear that Glen was a DART employee, who was driving a DART bus, and that he knew he was in a collision with their car. They maintain that Glen's actual knowledge of the accident should be imputed to DART because Glen was DART's agent or representative and he was engaged in the business of his principal at the time of the accident under circumstances imposing on an agent or representative the reasonable duty of making the facts known to his superior. City of Galveston v. Shu, 607 S.W.2d 942, 945 (Tex.Civ.App.Houston [1st Dist.] 1980, no writ). We agree that if Glen had a duty to gather facts and report to DART, his knowledge would be imputed to DART. Rosales v. Brazoria County, 764 S.W.2d 342, 345 (Tex.App.Texarkana 1989, no writ); City of Texarkana v. Nard, 575 S.W.2d 648, 652 (Tex.Civ.App.Tyler 1978, writ ref'd n.r.e.).
In Shu, the court's holding that the city had actual notice was based upon evidence that an official investigation of the accident was made by employees of the city who had the duty to investigate or report accidents. Shu, 607 S.W.2d at 945-46. In the case at bar, there is no evidence that anyone with the duty to gather facts and report same to DART investigated the accident. Glen's testimony is deficient because there was no evidence that he had a duty to investigate the accident and file a report with DART. There is also no evidence that Glen in fact reported the accident to anyone connected with DART.
*88 Finally, Melvin and Beverly argue that the circumstantial evidence that the Dallas police made an official investigation of the accident amounted to evidence of probative force that DART had actual notice, within the Act, of their claim. Id. at 946. We disagree. In Shu, the court held that an investigation by city police was sufficient to impute actual knowledge to the city, but here there is no evidence that a City of Dallas police officer had a duty to report his findings to DART, a separate unit of government, and there is no evidence that the City of Dallas and DART had an agency relationship with each other. For all of the above reasons, we hold that there was legally insufficient evidence to support submission of a fact question concerning actual notice to the jury. Accordingly, the trial court did not err in directing a verdict for DART. We overrule the second point.
In their first point of error, Melvin and Beverly contend that the trial court erred in directing a verdict for Glen based on noncompliance with the statutory notice requirement of the Texas Tort Claims Act. They argue that only a governmental unit is entitled to the notice in section 101.101(a) of the Texas Civil Practice and Remedies Code and that this section does not apply to an individual employee who committed the tort. In the alternative, they argue that, if this section applies, formal notice was not required because Glen had actual notice of the accident. Tex.Civ.Prac. & Rem.Code Ann. § 101.101(c) (Vernon 1986).
We first note that we have found no record of the contents of the motion for directed verdict under attack in this appeal. The only reference to it is in the final judgment of the trial court: "The Court having considered the Motion, directed a verdict on the merits in favor of Defendants for the reason that the Plaintiffs failed to satisfy the statutory prerequisites of Chapter 101 of the Texas Civil Practice and Remedies Code, et seq., with respect to notice." This recitation does not necessarily mean that the trial court based its directed verdict for Glen on non-compliance with the statutory notice requirement found in
Chapter 101. It may mean only that, because Melvin and Beverly did not prove either formal or actual notice to DART, the court found they were barred from recovering from Glen.
An individual performing a governmental function can be charged with no greater responsibility than that imposed upon the governmental unit. Steele v. Barbian, 620 S.W.2d 875, 878 (Tex.Civ. App.Amarillo 1981, no writ). The statutory preservation of a governmental employee's individual immunity is contained in sections 101.026 and 101.106 of the Texas Civil Practices and Remedies Code. Section 101.026 provides: "To the extent an employee has individual immunity from a tort claim for damages, it is not affected by this chapter." Tex.Civ.Prac. & Rem.Code Ann. § 101.026 (Vernon 1986). Section 101.106 provides that: "A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim." Tex.Civ.Prac. 101.106 (Vernon 1986).
Melvin and Beverly assert that Glen was acting in a ministerial capacity and that, therefore, he is liable for his tortious conduct to the same extent as a private person. Baker v. Story, 621 S.W.2d 639, 645 (Tex.Civ.App.San Antonio 1981, writ ref'd n.r.e.); Eubanks v. Wood, 304 S.W.2d 567, 570 (Tex.Civ.App. Eastland 1957, writ ref'd n.r.e.). However, in Baker and Eubanks, the governmental employee did not raise protection under sections 101.026, 101.106, or their prior corresponding sections under article 6252-19 of the Texas Revised Civil Statutes. Baker, 621 S.W.2d at 645; Eubanks, 304 S.W.2d at 569. Section 101.106 provides automatic derivative immunity for a governmental employee. The relevant issue, however, is whether the cause of action against the governmental unit has been decided on its merits. Brown v. Prairie View A. & M. Univ., 630 S.W.2d 405, 408 (Tex.App.Houston [14th Dist.] 1982, writ ref'd n.r.e.). The judge directed a verdict *89 for DART only after the conclusion of the evidence and the failure of Melvin and Beverly to prove their case as required by DART's verified denial of notice. The judgment recites that "The Court having considered the Motion, directed a verdict on the merits in favor of Defendants." Therefore, the cause of action against DART was clearly decided upon the merits. Because we have already held in the second point that it was not error for the trial court to direct a verdict for DART, and because Glen cannot be charged with any greater responsibility than DART, it follows that, as a matter of law, the trial court did not err in directing a verdict for Glen. We overrule their first point.
In their third point of error, Melvin and Beverly contend that the trial court erred in refusing to rule on their motion to set aside judgment. The judgment was signed August 10, 1990. A motion for new trial was filed on August 14 and was overruled by written and signed order on September 18, 1990. Melvin and Beverly filed their motion to set aside judgment on October 9, 1990. A hearing on the matter was not set until October 24, 1990. The trial judge did not rule on the motion; a docket entry reflects that he "passed" the motion. Melvin and Beverly contend that their motion to set aside judgment should be considered a motion to modify, correct, or reform the judgment, which extends the court's plenary power and time for perfecting an appeal in the same manner as a motion for new trial. Tex.R.Civ.P. 329b(g). They note that a motion for new trial is timely if filed "within thirty days after the judgment or other order complained of is signed." Tex. R.Civ.P. 329b(a). They then argue that their motion to set aside judgment is in reality complaining of the trial court's order overruling their motion for new trial and not of the final judgment signed on August 10, 1990, and since the motion to set aside judgment was filed within thirty days of September 18, 1990, the date of the order overruling the motion for new trial, the court had plenary power to hear it within seventy-five days after the judgment was signed. Tex.R.Civ.P. 329b(c).
DART contends that the trial court was without plenary power to either hear or to make a ruling on Melvin and Beverly's motion to set aside judgment because the hearing on the motion was not set until more than thirty days after their motion for new trial was overruled by written and signed order. DART relies on rule 329b(e), which states that:
If a motion for new trial is timely filed by any party, the trial court ... has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.
Tex.R.Civ.P. 329b(e). We agree that the trial court's plenary power to rule on Melvin and Beverly's motion to set aside judgment expired thirty days after it signed the order overruling their motion for new trial on September 18, 1990; consequently, the court had no jurisdiction to hear their motion to set aside judgment on October 24, 1990. Id.
We also reject Melvin and Beverly's characterization of their motion to set aside judgment as complaining of the trial court's ruling on their motion for new trial. The character of a motion is to be determined from its substance and not from its caption. Moncrief v. Harvey, 805 S.W.2d 20, 23 (Tex.App.Dallas 1991, no writ); Brazos Elec. Power Co-op, Inc. v. Callejo, 734 S.W.2d 126, 128 (Tex.App. Dallas 1987, no writ). In the instant case, the motion prays that "this Court set aside the judgment in this cause and order a new trial." We conclude that, in spite of its heading and Melvin and Beverly's contrary contention, the character of Melvin and Beverly's motion is actually a motion for new trial and that it is complaining of the judgment on the merits, not the order overruling their motion for new trial. Rule 329b(b) provides: "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 *90 signed." Tex.R.Civ.P. 329b(b). A supplemental motion for new trial filed without leave of court and more than thirty days after the appellate timetable begins to run is a nullity and cannot be considered by the trial court. Equinox Enters., Inc. v. Associated Media Inc., 730 S.W.2d 872, 875 (Tex.AppDallas 1987, no writ). The record does not reflect that Melvin and Beverly filed a motion for leave to file their motion to set aside judgment; therefore, they have no right to have the trial court rule on the motion after the first motion for new trial has already been overruled. We hold that the trial court did not err in failing to rule on the motion to set aside judgment.
We overrule the third point of error and affirm the judgment of the trial court.
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502 F. Supp. 145 (1980)
In re Petition for Naturalization of Lennox WATSON.
Misc. No. 79-49.
United States District Court, District of Columbia.
October 2, 1980.
*146 Stanton Braverman, Washington, D. C., for petitioner.
Robert N. Herman, Gen. Atty., Immigration & Naturalization Svc., Washington, D. C., for respondent.
MEMORANDUM OPINION
JOHN H. PRATT, District Judge.
Lennox Watson, a native of Guyana, petitions this court for naturalization as a United States citizen. He does so on the basis of active duty service in this country's armed forces during the Vietnam conflict. The Immigration and Naturalization Service opposes his petition on the ground that his honorable discharge was on "account of alienage," and does not satisfy the statutory provision on which he now relies. For the reasons stated below, his petition is granted.
Factual Background
Lennox Watson was born in Guyana in 1949, entered the United States on a student visa in 1969, and in 1976, while still validly within this country, he enlisted in the D. C. National Guard. In October of that year, he reported to the United States Army post at Fort Leonard Wood, Missouri, for four months of training, making him an active duty member of the United States Army. In January, 1977, he completed his training and reported back to the 104th Maintenance Company of the D. C. National Guard, an Army reserve unit. He continued to serve in his reserve capacity until January, 1978, when he was honorably discharged for his failure to produce an I-151 alien identification card, as required by National Guard regulations. Such cards are only issued to permanent resident aliens, which Watson was not. His service record, despite his discharge, was entirely satisfactory.
Although it is unclear whether at the time Watson enlisted he knew of § 329(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1440(a) (1976 ed.), he certainly knew of it soon after, for promptly on his return from Fort Leonard Wood, he filed his petition for naturalization on the basis of that provision. The Immigration and Naturalization Service (INS) held a preliminary examination in the case in June, 1977, but took no action on his petition until ordered to do so by this court in February, 1980. In April, the INS decided to oppose the petition, arguing that Watson had not met the requirements of § 329(a).
Statutory Construction
Section 329(a) of the Immigration and Naturalization Act of 1952 provides in relevant part that:
Any person who, while an alien ... has served honorably in active-duty status in the military ... forces of the United States during [the] period beginning February 28, 1961, and ending on a date designated by the President by Executive Order [October 15, 1978] as the date of termination of the Vietnam hostilities ... and, who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section if at the time of his enlistment ... such person shall have been in the United States ... whether or not he has been lawfully admitted to the United States for permanent residence .... Provided, however, That no person who is or has been separated from such service on account of alienage ... shall be regarded as having served honorably or having been separated under honorable conditions for the purposes of this section.
8 U.S.C. § 1440(a) (1976 ed.) (emphasis supplied).
It is conceded that Watson served honorably on active duty status during the relevant period.[1] Nevertheless, the INS contends that Watson's honorable discharge was "on account of alienage," making him ineligible for naturalization under § 329(a) of the Immigration and Naturalization Act. *147 Id. Watson contends that Congress meant the language to bar naturalization only of those aliens who sought and procured their discharge on account of alienage, and not to bar naturalization of aliens honorably discharged for the convenience of the United States.
The legislative history supports Watson's contention. Congress first enacted this language in 1948, Act of June 1, 1948, ch. 360, § 1, 62 Stat. 282 (1948), as an amendment to the Nationality Act of 1940. Ch. 876, 54 Stat. 1137 (1940). The purpose of the amendment was to "make it possible for aliens who have served, or are serving honorably, in the armed forces of the United States during World War I or World War II, to acquire United States citizenship through naturalization without the necessity of going through the regular detailed process required of nonservice people." Amending the Nationality Act of 1940, H.R. Rep. No. 1408, 80th Cong., 2d Sess. 1 (1948). The 1948 Amendment permanently eased requirements facing alien veterans and active duty personnel who had not taken advantage of such naturalization opportunities under statutes that had expired. Congress reenacted the language as § 329(a) of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1440(a) (1976 ed.), and permanently extended its coverage to Korean War era personnel in 1961, Act of Sept. 26, 1961, Pub.L. No. 87-301, §§ 7, 8, 75 Stat. 653-54 (1961), and to Vietnam era personnel in 1968. Act of Oct. 24, 1968, Pub.L. No. 90-633, 82 Stat. 1343-44 (1968).
The language "separated from the service on account of alienage" was evidently added to deal with a special situation created by the draft laws in force at the time. Under the statute as it stood in World War II, aliens within the United States were subject to the draft unless they declared their intention not to seek United States citizenship. This declaration permanently barred them from seeking naturalization. See, e. g., Benzian v. Godwin, 168 F.2d 952 (2d Cir.), cert. denied, 335 U.S. 886, 69 S. Ct. 235, 93 L. Ed. 425 (1948). Under some circumstances, aliens already in the United States armed forces could petition for discharge on account of alienage. Discharge on these grounds permanently disqualified the petitioning alien from United States citizenship. 8 U.S.C. § 1426(a) (1976 ed.).
Congress clearly intended the language "on account of alienage" to bar naturalization under § 329(a) to aliens who successfully petitioned for discharge. Congress also made clear that its intention was not to bar naturalization of aliens honorably discharged for the convenience of the government. Congress did so in 1953, by amending the Immigration and Naturalization Act of 1952 to extend easier naturalization to aliens serving in the armed forces during the Korean War. Act of June 30, 1953, ch. 162, 67 Stat. 108 (1953).
The 1953 amendments contained the same naturalization disqualifications as § 329(a) of the 1952 Act. First, those aliens discharged "under other than honorable conditions" could not be naturalized; second, conscientious objectors who refused to perform any duty or refused to wear the uniform were forbidden to be naturalized; and third, those aliens discharged "pursuant to an application for discharge made by him on the ground that he is an alien" were barred from naturalization. Act of June 30, 1953, ch. 162, § 3, 67 Stat. 110 (1953). These disqualifications track those in § 329(a); indeed, the language concerning conscientious objectors and discharge under other than honorable conditions is substantially identical.
The initial House version of the 1953 amendment tracked § 329(a)'s disqualifications identically. Deputy Attorney General William Rogers wrote the House Judiciary Committee, pointing out that the language "discharge on account of alienage," might be interpreted as an exception to § 315 of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1426(a) (1976 ed.), which permanently barred naturalization of aliens who sought and received discharge on account of alienage. H.R.Rep. No. 223, 83d Cong., 1st Sess. 2-3 (1953). In order to meet this objection, the Committee changed the language to "discharged ... pursuant *148 to an application for discharge made by him on the ground that he is an alien." Act of June 30, 1953, ch. 162, § 3, 67 Stat. 110 (1953).
Congress viewed the 1953 language as clarifying, but not altering, the meaning of § 329(a). The floor statements made when the 1953 amendment was considered reflect this view.
Mr. Walter: [I]s this not the bill that is identical with the law as it existed during the war ...?
Mr. Graham: That is a correct statement.
99 Cong.Rec. 2639 (1953). Representative Walter was Chairman of the House Subcommittee on Immigration and Nationality and was prime sponsor and floor manager of the Immigration and Naturalization Act of 1952. Representative Graham chaired the subcommittee in 1953, and was the sponsor of the 1953 amendment.
Representative Keating, who sponsored the 1948 statute that first contained the language of § 329(a), agreed that the purpose and effect of the 1953 and 1948 statutes were identical.
Mr. Keating: I introduced a bill in the 80th Congress to facilitate the naturalization of our brothers of foreign birth who served in the military or naval forces of our country in World War II. This bill became law in June 1948 .... No one, I believe, will challenge the contention that these same privileges should be extended participants and veterans of the Korean conflict.
. . . . .
To those who, out of devotion to the country of their adoption waived their exemption from military service, this bill provides a national policy of facilitating their conversion from the status of alien to that of citizen of the country for which they have evidenced such patriotic devotion.
99 Cong.Rec. 2639 (emphasis supplied).
Thus the sponsors of the 1948, 1952, and 1953 statutes viewed them as identical in purpose and operation; the subcommittee chairmen shared this view.
The Senate evidently agreed. In his floor statement concerning the 1953 amendment, Senator Watkins, the bill's floor manager, reminded the Senate that aliens were subject to the draft, noted one minor change made to conform the House bill more closely to the draft laws, and stated that the bill was modeled on legislation governing naturalization of World War II veterans. 99 Cong.Rec. 6621 (1953).
The 1953 amendment lapsed in 1955. Act of June 30, 1953, ch. 162, § 1, 67 Stat. 109 (1953). In 1961 and 1968, however, Congress extended permanent naturalization benefits to Korean War and Vietnam War veterans. Act of Sept. 26, 1961, Pub.L. No. 87-301, §§ 7, 8, 75 Stat. 653-54 (1961); Act of Oct. 24, 1968, Pub.L. No. 90-633, 82 Stat. 1343-44 (1968). These amendments only changed the eligibility dates.[2] Nothing in the statutory language or legislative history shows any intention to change the meaning of § 329(a). The House Committee Report on the 1961 amendments states that "[t]his legislation is fully consistent with the policy previously expressed by the Congress in the enactment of several statutes enabling naturalization [of] alien members of the Armed Forces of the United States," including the 1952 and 1953 statutes. H.R.Rep. No. 1086, 87th Cong., 1st Sess. 35 reprinted in [1961] U.S.Code, Cong. & Ad.News, pp. 2950, 2979. As aliens remained subject to the draft until 1967, Universal Military Training Act of 1951, ch. 144, Title I, § 1(d), 65 Stat. 76 (1951); Selective Service Act of 1967, § 1(2), 50 U.S.C. App. § 454(a) (1976 ed.), and under certain circumstances had to elect between permanent disqualification for citizenship and service in the armed forces, Universal Military Training Act, supra, it would be inappropriate to infer any intention different from that expressed in the 1953 amendments. In other words, the language "discharge on *149 account of alienage" should be read to mean a discharge granted pursuant to an application made by the alien on the ground of his alienage.
This court may properly resort to the 1953 statute and its legislative history in order to determine the meaning of § 329(a). The Supreme Court has recognized repeatedly that subsequent legislation declaring the intent of an earlier statute is entitled to significant weight in determining what Congress meant to do. See, e. g., NLRB v. Bell Aerospace, Inc., 416 U.S. 267, 275, 94 S. Ct. 1757, 1762, 40 L. Ed. 2d 134 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S. Ct. 1794, 1801-02, 23 L. Ed. 2d 371 (1969). The language of the 1953 statute-"discharged pursuant to an application made by him on the ground he is an alien"-together with the legislative history of the statutes from 1948 to 1968, show that Congress did not intend that aliens discharged for the convenience of the government should be barred from seeking naturalization under § 329(a). The legislative history relied on here does not consist of isolated, post hoc rationalizations by individual members, see, e. g., Southeastern Community College v. Davis, 442 U.S. 397, 411 n. 11, 99 S. Ct. 2361, 2370 n. 11, 60 L. Ed. 2d 980 (1979), but of consistent statements by the authors, sponsors and subcommittee chairmen responsible for the legislation. These statements were made on the floor at the time of enactment, and no member expressed any contrary view. Under these circumstances, this legislative history is entitled to dispositive weight.
The INS examiner in this case did not consider the legislative history in any detail, but instead relied on a number of unreported cases to hold that Watson's petition should be denied. These cases are neither precedent nor persuasive. All but two were decided before the present language was enacted and clarified in 1953, and involved aliens who were discharged during wartime because they were citizens of enemy or neutral nations. Two of these unreported cases were decided after § 329(a) was enacted in 1952. One decision[3] was made by a federal district court and supports Watson's position; the other was made by a Massachusetts trial court and undercuts his position. Neither court looked at the legislative history.
The examiner also relies on United States v. Harbanuk, 62 F.2d 759 (2d Cir. 1933). That case involved the discharge of a Russian citizen from the National Guard during World War I, a discharge ordered by the War Department on account of petitioner's alienage. Judge Manton, writing for the court, held that this was a discharge on account of alienage within the meaning of the immigration statute then in force, barring naturalization.
The Harbanuk case does not control here for three reasons. First, it was decided under an earlier statute before Congress made clear its contrary intent in the 1953 statute. Second, it involved the involuntary discharge of a man who was effectively an enemy alien. A United States expeditionary force was dispatched to fight in the Soviet Union shortly after his discharge. See Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919). Third, the court held that all doubts under the naturalization statute had to be resolved in favor of the government. Harbanuk v. United States, supra, at 761. As the D.C. Circuit has stated since, the present statute is not to be interpreted in an "arbitrary and niggardly fashion." United States v. Convento, 336 F.2d 954, 955 (D.C.Cir.1964).
Finally, the examiner suggests, without offering proof, that petitioner enlisted in order to defraud the United States into granting citizenship. The examiner points out that petitioner should not have been permitted to enlist under the National Guard regulations then in force. Petitioner answers this contention by showing that (1) he made no secret of his alien status when he enlisted or later, and (2) that he was given obsolete forms to complete at the time of his enlistment, forms which did not show that service in the National Guard *150 was restricted to United States citizens and permanent resident aliens. Improper induction or enlistment into the armed forces, with the knowledge of the armed forces, does not bar naturalization under § 329(a). See In re Apollonio, 128 F. Supp. 288 (S.D.N. Y.1955) (alien naturalized under 1953 statute despite illegal induction into the Army with the knowledge of the Army, and subsequent involuntary discharge on account of alienage).
Conclusion
For the foregoing reasons, the petition for naturalization is granted.
An order consistent with the foregoing has been entered this day.
NOTES
[1] Exec. Order No. 12081, 43 Fed.Reg. 42237 (1978) (restricting eligibility for naturalization under § 329(a) to those serving before October 15, 1978).
[2] Congress rejected an attempt to limit these naturalization benefits to those who served in combat zones. H.Rep. No. 1968, 90th Cong., 2d Sess. reprinted in [1968] U.S.Code, Cong. & Ad.News, pp. 4517, 4528-29.
[3] Petition for Naturalization of Otto Bagai, No. 177618 (N.D.Cal. May 19, 1970).
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846 S.W.2d 37 (1992)
John Wiley PRICE, Appellant,
v.
The STATE of Texas, Appellee.
No. 05-91-00346-CR.
Court of Appeals of Texas, Dallas.
November 25, 1992.
*38 James D. McCarthy and Phyllis Jackson, Dallas, for appellant.
Sue Korioth, Dallas, for appellee.
Before STEWART, MALONEY and CHAPMAN[1], JJ.
OPINION
STEWART, Justice.
Pursuant to a plea-bargain agreement, John Wiley Price (appellant) pleaded guilty to misdemeanor criminal mischief for damage to several billboards in an aggregate amount of $200 or more but less than $750 (the billboard case). The trial court placed appellant on six months' deferred-adjudication probation. Appellant subsequently was charged with and convicted of misdemeanor criminal mischief for causing property damage to the windshield wiper of Stephani Barnes's motor vehicle in an amount of $20 or more but less than $200 (the windshield-wiper case). The trial court revoked appellant's probation in the billboard case, adjudicated his guilt, and sentenced him to seventy-five days' confinement in the Dallas County Jail. On appeal from this adjudication of guilt, appellant complains that the trial court erred in: (1) accepting his original plea in the billboard case because he did not enter into it knowingly or voluntarily; and (2) denying him due process in the adjudication-of-guilt and probation-revocation proceedings. We sustain appellant's first point of error. Accordingly, we reverse and remand.
FACTUAL BACKGROUND
Appellant was charged in the billboard case by information with the misdemeanor of criminal mischief. The information alleged that on March 18, 1990 appellant knowingly and intentionally caused damage of $200 or more but less than $750 to several billboards advertising cigarettes. Appellant signed a judicial confession that tracked the language of the information. He also entered into a written plea-bargain agreement that provided he would plead guilty and receive six months' deferredadjudication probation and a $100 fine. On September 14, 1990, pursuant to the pleabargain agreement, the trial court placed appellant on six months' deferred-adjudication probation and assessed a $100 fine; it did not inform appellant of the possible consequences of a violation of that probation.
On February 5, 1991, the State filed its amended motion to proceed with an adjudication of guilt in the billboard case. The State alleged that, on December 7, 1990, appellant violated condition one of his probation by committing two class-B misdemeanors, which constituted the windshieldwiper case. Specifically, the State asserted that appellant had (1) knowingly and intentionally damaged Barnes's motor vehicle, *39 causing a pecuniary loss of $20 or more but less than $200; and (2) without legal privilege or authority, intentionally and knowingly obstructed a place used for the passage of persons and vehicles by physically blocking with his person Barnes's van from travelling into the driveway located near the intersection of Ivan and McKinnon streets.
Following appellant's conviction in the windshield-wiper case, the trial court heard the State's motion to proceed with adjudication of guilt in the billboard case. The parties entered an agreement regarding evidence. This agreement stipulated that the evidence admitted in the windshield-wiper case was the same evidence that would be introduced at the hearing on the State's motion in the billboard case and requested that the trial court take judicial notice of and render its decision based upon the record in the windshield-wiper case. The trial court accepted the parties' agreement, took judicial notice of the record in the windshield-wiper case, and found true both allegations in the State's amended motion to proceed with adjudication of guilt in the case at bar. The trial court then found appellant guilty of misdemeanor criminal mischief in the billboard case and assessed punishment at seventy-five days' confinement in the Dallas County Jail.
VOLUNTARINESS OF APPELLANT'S GUILTY PLEA
In his first point, appellant asserts that the trial court erred in accepting his guilty plea in the billboard case because the plea was not entered knowingly and voluntarily. Specifically, appellant contends that the trial court failed to properly admonish him of the possible consequences of a violation of his deferred-adjudication probation, see Tex.Code Crim.Proc.Ann. art. 42.12, § 5(a), (b) (Vernon Supp.1992), and that, therefore, his guilty plea in the billboard case was not knowingly and voluntarily made.
We initially note that this Court can review appellant's complaint that his guilty plea in the billboard case was involuntary. No appeal may be taken from the trial court's determination to proceed to an adjudication of guilt. Tex.Code Crim.Proc.Ann. art. 42.12, § 5(b). However, after an adjudication of guilt, the defendant's appeal continues as if the adjudication of guilt had not been deferred. Id. The voluntariness of appellant's guilty plea is unrelated to the trial court's determination to proceed to adjudicate guilt; thus, it is appealable. See Homan v. Hughes, 708 S.W.2d 449, 452 (Tex.Crim. App. 1986) (statute only precludes appeal of decision to proceed to adjudication of guilt).
Article 42.12 of the Texas Code of Criminal Procedure controls questions concerning adult probation and applications to revoke probation. Section 5(a) provides,
[W]hen in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation. The court shall inform the defendant orally or in writing of the possible consequences under Subsection (b) of this section of a violation of probation.
Tex.Code Crim.Proc.Ann. art. 42.12, § 5(a) (emphasis added). Section 5(b) in turn provides as follows:
(b) On violation of a condition of probation imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 24 of this Article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had not been deferred.
Tex.Code Crim.Proc.Ann. art. 42.12, § 5(b).
The State, relying on case law interpreting article 26.13 of the Texas Code of Criminal *40 Procedure,[2] urges that appellant was not entitled to these admonishments in this misdemeanor case. See Empy v. State, 571 S.W.2d 526, 529-30 (Tex.Crim.App. 1978) (article 26.13 admonishments not required in misdemeanor proceedings).
In Empy, the Court of Criminal Appeals pointed out its consistent holding that article 26.13 admonishments need not be given to a defendant who enters a guilty plea in a misdemeanor case. Id. Article 26.13, like article 42.12, section 5, does not specify that it applies only to felonies. However, article 27.13, which addresses pleas of guilty or nolo contendere in felony proceedings, specifically requires a defendant to personally plead guilty or nolo contendere in open court, with proceedings as provided in article 26.13. Tex.Code Ceim.Proc.Ann. art. 27.13 (Vernon 1989). By contrast, article 27.14, which addresses pleas of guilty or nolo contendere in misdemeanor cases, neither requires a defendant's presence in court to plead nor refers to article 26.13. Tex.Code Crim.Proc.Ann. art. 27.14 (Vernon 1989). Because of the specific requirement of article 26.13 proceedings in felonies and the omission of such requirement for misdemeanors, see Tex.Code Crim.Proc.Ann. arts. 27.13 & 27.14, courts have long held that article 26.13 admonishments are not required for pleas of guilty or nolo contendere in misdemeanors. See Empy, 571 S.W.2d at 529-30 (and cases cited therein).
However, at the time Empy was decided, no statute required any type of warning to be given to a defendant entering a guilty plea in a misdemeanor case. Id. at 530. In 1978, section 5(a) did not exist, and its predecessor, section 3d(a), did not contain the admonishment requirement now found in section 5(a).[3]
In addition, article 42.12, section 5(a) refers to both felonies and misdemeanors and gives the maximum period of probation for each. The reference to both felonies and misdemeanors in section 5(a) immediately follows two sentences which concern the court's responsibility to inform the defendant of the possible consequences of a violation of his probation. We conclude that this juxtaposition indicates a legislative intent that the information set forth in section 5(b) be given to all defendants, whether they have been charged with a felony or a misdemeanor, who are granted deferred adjudication. Because the trial court can admonish the defendant of the consequences of a violation of his probation in writing, see Tex.Code Crim.Proc.Ann. art. 42.12, § 5(a), application of article 42.12, section 5(a) to misdemeanors is not inconsistent with article 27.14, which does not require the misdemeanor defendant's presence in court. Further, article 26.13 and article 42.12, section 5(a) provide two separate admonishment schemes. Requiring the trial court to admonish the misdemeanor defendant of the consequences of a violation of probation in no way affects Empy and cases like it, which deal with admonishments relevant to guilty pleas.
Based on the statutory differences involved, we conclude that the rationale used in Empy to hold that article 26.13 admonishments do not apply to misdemeanors is inapplicable in determining whether article 42.12, section 5 applies to misdemeanors. Articles 27.13 and 27.14 indicate a clear intent that article 26.13 admonishments apply to felonies, but not to misdemeanors. On the other hand, nothing in article 42.12, section 5 reflects any intent that the admonishments provided therein should apply only to felonies. We further conclude that the trial court's failure to admonish appellant of any of the consequences of a violation of his deferred-adjudication probation rendered his guilty plea involuntary. Finally, we conclude that, because *41 the trial court gave appellant none of the admonishments required by article 42.12, section 5(a), appellant need not show harm to obtain a reversal.[4] We sustain appellant's first point of error.
Our disposition of appellant's first point of error makes it unnecessary to address his second point alleging denial of due process in the adjudication-of-guilt and probation-revocation proceedings.
We reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
NOTES
[1] The Honorable Ron Chapman, Justice, participated in this case at the time it was submitted for decision. Because he subsequently recused himself from this case, he did not participate in the issuance of this opinion.
[2] Tex.Code Crim.Proc.Ann. art. 26.13(a)(1)-(4) (Vernon 1989) provides that prior to accepting a plea of guilty or of nolo contendere, the court must admonish the defendant of: (1) the range of punishment attached to the offense; (2) the court's right to reject any plea bargain; (3) the limitations on the defendant's right of appeal; and (4) the risk of deportation of non-citizens.
[3] Tex.Code Crim.Proc.Ann. art. 42.12, § 3d(a) was renumbered and amended to require admonishments effective September 1, 1989. Act of June 15, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex.Gen.Laws 3471, 3500 (codified as renumbered at Tex.Code Crim.Proc.Ann. art. 42.12, § 5(a) (Vernon Supp.1992)).
[4] The absence of any admonishment makes it unnecessary for us to determine whether substantial compliance would require the appellant to show harm.
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846 S.W.2d 51 (1992)
Ivy Renee STRAWDER, as Personal Representative of the Estate and Successor of Timmy Lee Thomas, et al., Appellants,
v.
Georgia THOMAS and Paul Webb, Appellees.
No. 13-91-154-CV.
Court of Appeals of Texas, Corpus Christi.
December 10, 1992.
*54 Paul Webb (Attorney Ad Litem), Wharton, John Wesley Wauson, Neil M. Leibman, Wauson & Bruce, Houston, for appellant.
Robinson C. Ramsey, Wharton, Ernest H. Cannon, Houston, for appellee.
Before NYE, C.J., and GERALD T. BISSETT[1] and SEERDEN, JJ.
OPINION ON MOTIONS FOR REHEARING
BISSETT, Justice (Assigned).
We withdraw our previous opinion and substitute the instant opinion as the opinion of the Court. The appellees' motions for rehearing are granted.
This is an appeal by Ivy Renee Strawder, as personal representative of the Estate of Timmy Lee Thomas and as Tutrix[2] of Timmy Tyrell Strawder, a minor, and Timmy Tyrell Strawder, by and through Ivy Renee Strawder, his Tutrix and Next Friend, from a judgment rendered in a severed crossaction brought against Ivy by Georgia Thomas, individually. The judgment decreed that Georgia Thomas recover of and from Ivy Renee Strawder, in the capacities above-stated, all court costs, and attorney's fees in the amount of $400,000; that the attorney ad litem recover from Ivy Renee Strawder, in the capacities above-stated, attorney's fees in the amount of $40,000; and that additional attorney's fees be recovered from Ivy Renee Strawder, in the capacities above-stated, in the event of appeals. We reverse and vacate the judgment on jurisdictional grounds.
IN GENERAL
On or about October 3, 1989, the Zapata Haynie Corporation's vessel, "MV NOTHUMBERLAND," operating in Gulf of
Mexico waters, struck a gas pipeline and caused an explosion which resulted in the death of Timmy Lee Thomas. The pipeline, at the time of the explosion, was owned by Natural Gas Pipeline of America and was operated and managed by third parties. The 14th District Court of Calcasieu Parish, Louisiana (hereafter the "Louisiana Court"), appointed Georgia Thomas, the mother of Timmy Lee Thomas, Administratrix of the Estate of Timmy Lee Thomas, Deceased (hereafter the "Thomas Estate"), on October 12, 1989.
Thereafter, Georgia Thomas engaged the law firm of Ernest Cannon & Associates, Houston, Texas to prosecute her individual action and that of the Thomas Estate against Natural Gas Pipeline of America and the third parties who operated and managed the pipeline (hereafter the "Pipeline Defendants"). Suit was filed by the attorneys for Georgia Thomas, in a District Court of Wharton County, Texas, against the Pipeline Defendants on April 6, 1990, and was docketed as No. 29,447. Georgia Thomas, as plaintiff, sued "individually and as representative of the Estate of Timmy Lee Thomas," to recover damages for the wrongful death of Timmy Lee Thomas.
The Louisiana Court removed Georgia Thomas as administratrix of the Thomas Estate by Order signed on May 17, 1990, and on the same day, appointed Ivy Renee Strawder as administratrix of the Thomas Estate and as Tutrix for and on behalf of her minor son Timmy Tyrell Strawder, who was the son of Timmy Lee Thomas, Deceased.
PROCEDURAL HISTORY
Georgia Thomas contends that the Pipeline Defendants settled the controversy existing between them sometime between April 6, 1990, and August 17, 1990, and represents that the Pipeline Defendants paid $1,000,000 in settlement. A document entitled "RECEIPT, RELEASE AND SETLEMENT AGREEMENT" was executed *55 by Georgia Thomas, individually, on August 17, 1990, wherein it was stated:
[b]y order of the Fourteenth Judicial District Court, Parish of Calcasieu, State of Louisiana, on May 17, 1990, in the matter entitled `Succession of Timmy Lee Thomas,' Probate No. 27,774, Ivy Renee Strawder, as tutrix for and on behalf of her minor son, Timmy Tyrell Strawder, was appointed administratrix and personal representative of the Succession of Timmy Lee Thomas....
The Agreement further provided that Georgia Thomas would hold harmless, defend and indemnify the Pipeline Defendants, the "Released Parties," from all claims
by Ivy Renee Strawder, as tutrix for her minor son, Timmy Tyrell Strawder, and/or administratrix and personal representative of the Succession of Timmy Lee Thomas, whether in tort, contract, or otherwise, in any way arising out of or directly or indirectly resulting from the injuries to and death of Timmy Lee Thomas.
The Pipeline Defendants did not sign the agreement.
Ivy Renee Strawder, "individually, on behalf of deceased, as the personal representative and as administratrix of his succession for and on behalf of the deceased, and as tutrix for her minor son, Timmy Tyrell Strawder," filed suit against the Pipeline Defendants on July 27, 1990, to recover damages for the wrongful death of Timmy Lee Thomas. This suit was filed in the 38th District Court, Parish of Cameron, State of Louisiana, and was pending at the time of trial of the case at bar.
Georgia Thomas, "individually and as representative of the Estate of Timmy Lee Thomas," filed a "Motion to Deposit Money into Registry of the Court" on September 5, 1990, in the District Court of Wharton County, wherein she advised the court that: 1) Georgia Thomas was originally appointed "administratrix of the succession of Timmy Lee Thomas" on October 12, 1989, by the Louisiana Court; 2) she was removed as such administratrix by the Louisiana Court by Order signed on May 17, 1990, and the court appointed Ivy Renee Strawder administratrix in her stead; 3) Georgia Thomas and the Pipeline Defendants settled plaintiff's claims for $1,000,000; 4) such funds should be paid to the registry of the court pending distribution of the funds to the litigants; 5) counsel for plaintiff Georgia Thomas has notified "Ivy Renee Strawder as Next Friend of her minor son Timmy Lee Strawder of said settlement"; and 6) a dispute exists between counsel for Georgia Thomas and counsel for Ivy Renee Strawder "as Next Friend of Her Minor Son, Timmy Tyrell Strawder."
The record does not show that the court approved the purported settlement.
Also, on September 5, 1990, Georgia Thomas, still acting "individually and as representative of the Estate of Timmy Lee Thomas," filed a "Motion for Appointment of Attorney Ad Litem" for the minor Timmy Tyrell Strawder, apparently on the ground that counsel for Ivy Renee Strawder in the Louisiana Court proceedings "refused to substitute himself as counsel ... to protect the rights of the minor child," and on September 6, 1990, filed her First Amended Original Petition against the Pipeline Defendants,[3] although she had been removed as administratrix of the Thomas estate on May 17, 1990.
On September 7, 1990, Ivy Renee Strawder, "as tutrix and next friend for and on behalf of her minor son, Timmy Tyrell Strawder," filed an opposition to the Motions to "Deposit Money into the Registry of the Court" and to "Appoint Attorney ad Litem" on the grounds that "the settlement in this matter should be abandoned" and that "additional discovery is needed to develop the case."
Also, on September 7, 1990, Ivy Renee Strawder, "as administratrix of the succession of Timmy Lee Thomas and as tutrix and next friend of her minor son, Timmy *56 Tyrell Strawder," filed a Petition in Intervention in Cause No. 29,447 against the Pipeline Defendants only, in which she alleged: 1) Timmy Tyrell Strawder is the natural child of Timmy Lee Thomas, Deceased, and is the only child of the decedent; 2) she, as the mother of the child, as the administratrix of the Thomas Estate, and as next friend of the child has an interest in the controversy and is an interested party in the litigation; 3) Georgia Thomas is not a proper party to the pending lawsuit; and 4) she, Ivy Renee Strawder, is suing in the capacities above-stated to recover damages for the wrongful death of Timmy Lee Thomas.
Following a hearing on the motion to appoint an attorney ad litem, held before a Master on September 10, 1990, the trial court appointed Mr. Paul Webb as attorney ad litem by an order signed on the same day, September 10, 1990.
Georgia Thomas filed an answer to Ivy Renee Strawder's petition in intervention on September 21, 1990, which consisted of a general denial of the allegations therein, except she "admitted that Ivy Renee Strawder is a proper party in her representative capacities." The Pipeline Defendants did not answer, nor did they make an appearance with respect to the petition in intervention.
On September 28, 1990, Ivy Renee Strawder, the intervenor, filed a pleading by facsimile transmission in Cause No. 27,447, entitled "Notice of Nonsuit Without Prejudice" which stated that such notice of nonsuit was without prejudice, and further stated:
Intervenor no longer desires to prosecute this suit at this time against Plaintiff or Defendants and hereby nonsuits all such claims pursuant to Rule 162, Tex.R.Civ. P., and requests the Court enter the form of order submitted contemporaneously herewith.
The trial court, by order signed on September 28, 1990, dismissed intervenor's claims against Georgia Thomas and the Pipeline Defendant "without prejudice to their refiling or the refiling of any part thereof."
Georgia Thomas, as plaintiff only, filed a cross-action against the intervenor Ivy Strawder as administratrix of the Thomas Estate and as tutrix and next friend of Timmy Tyrell Strawder, on October 2, 1990, wherein it was stated:
Cross-Defendants have appeared herein.
No service of citation is necessary at this time.
Georgia Thomas, in her individual capacity only, sought a recovery of expenses, attorney's fees, and prosecution costs.
Ivy Renee Strawder, "as personal representative, as administratrix of the succession of Timmy Lee Thomas and as tutrix and next friend of her minor son Timmy Tyrell Strawder" filed a "Notice of Nonsuit Without Prejudice" on October 3, 1990, in which she stated that she "no longer desires to prosecute this suit against Georgia Thomas and [the Pipeline Defendants]." The trial court did not sign an order granting the nonsuit, as he did with respect to Ivy Renee Strawder's previous Notice of Nonsuit, filed on September 28, 1990.
On October 8, 1990, Paul Webb, the attorney ad litem, filed a Motion for Reconsideration of the Order of Nonsuit[4] on the ground that he never received a copy of either the Motion for Nonsuit or the order granting the motion. He asked that the Order for Nonsuit be set aside. Ivy Renee Strawder filed a response to Webb's motion on October 19, 1990, in which she opposed the Motion for Reconsideration on the ground that "he is not a party hereto and has no standing to file such motion" because the minor child is the real party in interest who is represented by her (Ivy Renee Strawder). The trial court granted the Motion for Reconsideration of the Order of Nonsuit by order signed on October 22, 1990, and stated that "the Order of Nonsuit of Intervenor Ivy Renee Strawder is hereby set aside for naught, and held out to be null and void." There is no evidence *57 of any conflict of interest between Ivy Renee Strawder and her minor son.
Georgia Thomas filed a cross-action in her individual capacity only against Ivy Renee Strawder on October 2, 1990. On October 26, 1990, Georgia Thomas, "Plaintiff herein and now acting as Cross-Claimant and Intervenor" filed an Amended Cross Action in Intervention, her trial pleading, in which she denied that Timmy Tyrell Strawder had any standing in the litigation and asserted that he is "entitled to take nothing out of any judgment, settlement or other proceeds." She further pleaded that "she is entitled to compensation and reimbursement for her time expended, prosecution costs and attorney's fees during the time this case was on file and which inured to the benefit of Cross-Defendant, Ivy Renee Strawder in her representative capacities and against Timmy Tyrell Strawder by and through his next friend and personal representative."
Following a trial before the court on the issues raised by Georgia Thomas in her amended cross-action, the trial court rendered judgment on November 20, 1990, which, among other determinations, ordered that
Georgia Thomas have recover from Ivy Renee Strawder, as representative of the Estate and Successor of Timmy Lee Thomas, Ivy Renee Strawder as next friend and testatrix of Timmy Tyrell Strawder, and Timmy Tyrell Strawder, by and through said tutrix and next friend, jointly and severally, the sum of $400,000 (for attorney's fees).
It was further ordered that Georgia Thomas recover of and from Ivy Renee Strawder in her several capacities, certain additional attorney's fees in the event of appeals and all costs of court.
On December 12, 1990, Paul Webb, the attorney ad litem, filed a "Motion to Modify, Correct or Reform the Judgment" of November 20, 1990, on the ground that it "did not address fees to be awarded to the attorney ad litem for work done by the ad litem in this matter."
Georgia Thomas, as cross-plaintiff, filed a motion to sever the cross-action from the case on December 12, 1990. This motion was filed by Georgia Thomas solely in her individual capacity. The motion was granted and the trial court, by order signed on December 17, 1990, severed her cross-action against Ivy Renee Strawder from the remainder of the case and ordered that the severed cause (the cross-action) be docketed as "No. 29,447-A," and further ordered that separate judgments be granted in each cause, and that "each judgment be final and to dispose of all issues between the parties in the respective suits."[5]
The trial judge signed another judgment on December 17, 1990. This judgment did not expressly set aside the judgment signed on November 20, 1990, nor did it state that the prior judgment was modified, amended or reformed in any respect. The only difference is that the judgment of December 17 awarded attorney's fees to the attorney ad litem, whereas the judgment of November 20 did not. It was found in the judgment of December 17, and so stated in the body thereof, that Georgia Thomas, as cross-plaintiff was entitled to recover of and from Ivy Renee Strawder, in her representative capacities, "the sum of $400,000," for attorney's fees and that the attorney ad litem was entitled to recover "the sum of $40,000." Additional attorney's fees were awarded to Georgia Thomas and Paul Webb in the event of an appeal to the appellate courts. All costs of court were taxed against Ivy Renee Strawder in her representative capacities.
Mr. Wauson, the attorney for Ivy Renee Strawder in the Wharton County litigation, filed an affidavit in Cause No. 29,447 on January 16, 1991, which was after the severance of the cross-action from the main suit. Attached to the affidavit is a copy of the document entitled "RECEIPT, RLEASE AND SETTLEMENT AGREMENT." As already noted, Georgia Thomas was removed as administratrix of the Thomas Estate by Order of the Louisiana Court on May 17, 1990. Therefore, she did *58 not have any authority to represent the Thomas Estate in any capacity from and after May 17, 1990, and her actions thereafter were actions in her individual capacity and not in any representative capacity for the Thomas Estate. So, the Settlement Agreement of August 17, 1990, and all motions and pleadings filed after May 17, 1990, are motions and pleadings of Georgia Thomas, individually, and are not binding on the Thomas Estate, despite the statement therein in some of the motions and pleadings that she was acting as "representative" of the Estate of Timmy Lee Thomas. Moreover, she denied in her amended cross-action that Timmy Tyrell Strawder had any standing "to make any claim herein," and requested the court to declare "that he is not a proper beneficiary to assert any claim herein and that he is entitled to take nothing herein out of any judgment, settlement or other proceeds."
Ivy Renee Strawder's motion for new trial was denied by order signed on March 7, 1991. Ivy Renee Strawder has duly perfected an appeal from the judgment rendered and signed on December 17, 1990, in Cause No. 29,477-A.
POINTS OF ERROR
Ivy Renee Strawder first contends that the trial court failed to give effect to her nonsuit, filed on September 28, 1990, and, as a consequence, erred in granting judgment in favor of Georgia Thomas and Paul Webb, attorney ad litem. We agree.
Georgia Thomas claims that the "attempted nonsuit" did not bar the trial court from proceeding to trial on her cross-action and rendering judgment against Ivy Renee Strawder in her representative capacities. In particular, she claims that "the attempted nonsuit of September 28, 1990, failed to remove Strawder's intervention claims" because the facsimile transmission of the Notice of Nonsuit was ineffective since it did not comply with the provisions of the Texas Government Code governing facsimile filings.
It is undisputed that the Notice of Nonsuit was filed by facsimile transmission with the district clerk of Wharton County, who stamped it "FILED AT 2:20 P.M., SEP. 28, 1990." It is further undisputed that the district clerk had not received approval by the Supreme Court of Texas for such filing until after September 28, 1990.
The Supreme Court of Texas, by Order signed on October 31, 1990, effective January 1, 1990, approved the "Adoption of Rules for Wharton County for Receiving and Filing Electronically Transmitted Court Documents." All essential requirements for filing by facsimile transmission of the Notice of Nonsuit in accordance with the Rules promulgated by the Supreme Court were met by counsel for Ivy Renee Strawder and by the district clerk. In particular, there was compliance with Rule 1, 5 and 14 of the Supreme Court's Order, reading:
1. The clerk is authorized to accept for filing via electronic transmission any document which might be filed in a court action except: (a) returns of service on issuance; (b) bonds; (c) signed orders or judgments.
* * * * * *
5. An electronically transmitted document accepted for filing will be recognized as the original record for file or for evidentiary purposes when it bears the clerk's official date and time file stamp.
* * * * * *
14. Electronic transmission of a document does not constitute filing. Filing is complete when the clerk's official date and time file stamp is affixed to the document.
An instrument is effective as "filed" when it has been received into the custody of the clerk of the court for filing. Newsom v. Boyd, 203 S.W.2d 874, 876 (Tex.Civ. App.Galveston 1947, no writ). There is no question in this case that the clerk of the district court obtained custody over the facsimile pleadings filed in this case by Ivy Renee Strawder and exercised custody over those documents by file stamping them and entering them into the docket and minutes of the Court's record. Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678 (Tex.1979). The clerk's failure to conform with the purely technical requirements for filing *59 does not eliminate the effectiveness of the filing since the purpose of this rule is to protect a diligent party from being penalized by the errors and omissions of the court clerk. Id. at 680.
Any failure of the facsimile filings by Ivy Renee Strawder to comply with the technical requirements of the Texas Government Code were predicated solely upon the misinformation provided by the district clerk and the clerk's continued treatment of all previous filings, including the Original Petition in Intervention, as pleadings filed appropriately by facsimile. The provisions of Tex.Gov't Code Ann. § 51.806 (Vernon 1988) do not require the filing of hard copies with the clerk, and Ivy Renee Strawder, generally, did not file hard copies with the clerk. Accordingly, the substantive rights of Ivy Renee Strawder to effect a nonsuit should not be thwarted by the failure of the district clerk to follow the technicalities required for electronic filing of documents. Moreover, the filing of the Notice of Nonsuit was made effective by the retroactive provision in the Supreme Court's order. We hold that the Notice of Nonsuit was properly filed on September 28, 1990.
Next, we decide the effect of the filing of the Notice of Nonsuit. A litigant's right to take a nonsuit, when affirmative relief is not sought by an adverse party, and the same is filed in a proceeding before the court and the judge has not reached a decision, cannot be denied by the trial court. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840-41 (Tex.1990); Greenberg v. Brookshire, 640 S.W.2d 870, 871 (Tex.1982).
Tex.R.Civ.P. 162 provides in relevant part:
At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a nonsuit, which shall be entered in the minutes....
The case law surrounding Rule 162 clearly reflects that taking of a nonsuit does not necessitate the filing of any other pleadings or observing other technical rules, but merely requires the appearance before the court or clerk by a plaintiff, or intervenor, through its representative or attorney, and the transmittal to the clerk of the party's abandoning its claims. No particular procedure is required to take a nonsuit. Greenberg, 640 S.W.2d at 872; Orion Investments, Inc. v. Dunaway & Associates, Inc., 760 S.W.2d 371, 373 (Tex.App.Fort Worth 1988, writ denied). The Supreme Court has held that the rule is to be liberally construed in favor of the right to nonsuit, Greenberg, 640 S.W.2d at 872, and that it should not be given strict or technical construction. Smith v. Columbian Carbon Co., 145 Tex. 478, 198 S.W.2d 727, 728 (1947). The rule is equally applicable to intervenors claiming affirmative relief. Boswell, O'Toole, Davis & Pickering v. Townsend, 546 S.W.2d 380, 381 (Tex.Civ. App.Beaumont 1977, no writ). The Texas courts have uniformly held that presentation to the court of a nonsuit in some fashion and entry of that presentation upon the court's calendar ends the case with regard to any claims involving that party, except for claims for affirmative relief then pending against the nonsuiting party; no order ever need be entered.
When the Notice of Nonsuit was filed, the only pleadings of Georgia Thomas filed by her in which affirmative relief was sought by her were her original petition and her first amended original petition. Georgia Thomas sought relief against the Pipeline Defendants and no one else. Georgia Thomas did not seek any affirmative relief in her original answer to Ivy Renee Strawder's Petition in Intervention; she did, however, ask that she be "entitled to time, prosecution costs and attorney's fees" in her "First Amended Cross Action and Intervention," but this pleading was filed on October 26, 1990, which was after the date that the "Notice of Nonsuit" was filed (September 28, 1990). Paul Webb, who had been appointed attorney ad litem on September 10, 1990, had not filed any pleadings asking for affirmative relief of any kind or character from Ivy Renee Strawder on the date that the "Notice of Nonsuit" was filed.
*60 In order for a defendant to qualify as seeking affirmative relief in his counterclaim, his pleadings must allege facts which show that he has a cause of action, independently of plaintiff's claim, on which he might proceed to recover benefits, compensation, or relief even though plaintiff abandons his cause of action or fails to establish it....
Newman v. Alkek, 614 S.W.2d 653, 655 (Tex.Civ.App.Corpus Christi 1981, writ ref'd n.r.e.).[6]
Since there were no pleadings by either Georgia Thomas or Paul Webb or anyone asking for affirmative relief against Ivy Renee Strawder in her representative capacities on September 28, 1990, when she filed her Notice of Nonsuit, and as she had an absolute right to a nonsuit against the Pipeline Defendants, the only defendants she sued, the trial court had no alternative other than to grant the nonsuit and to dismiss her action in intervention without prejudice, or to take no action on the nonsuit. The subsequent order by the trial court which set aside the order granting the nonsuit is a nullity.
There was no service of citation of the cross-action on Ivy Renee Strawder in her representative capacities prior to the rendition of judgment. Georgia Thomas contends that the appearance of counsel at the trial constitutes an appearance sufficient to confer jurisdiction on the court to render judgment "even if the attempted nonsuit was effective in removing the Estate from litigation before the filing of Thomas' cross claim." Ivy Renee Strawder claims that the trial court did not acquire in personam jurisdiction over her or the minor child Timmy Tyrell Strawder. We agree.
When the judge of the district court of Wharton County called for announcements at trial on the cross-action on November 1, 1990, Mr. John Wesley Wauson, the attorney who had represented Ivy Renee Strawder in the previous proceedings before the court, stated:
MR. WAUSON: Your honor, we're here, basically, as friends of the court, our position being that we are nonsuited and out of the case.
Thereafter, the court responded:
THE COURT: We don't have a procedure for you to actively take part in the trial of the lawsuit.
Mr. Wauson then said:
MR. WAUSON: We don't intend to, your honor. We're here just for the purpose of observing....
Mr. Cannon, the attorney for Georgia Thomas then asked the court if he could ask Mr. Wauson to the stand, and the court said "sure." Mr. Wauson asked: "Can I make a response?" Mr. Cannon then said:
I'd like to call him as a witness. He's appearing as a friend of the court, said he wasn't appearing as a party. He doesn't get to respond at all.
The court said:
No, you reallyyou really don't. I don't know of any procedure in Texas where outside the appellate court, where friends can speak during trial.
Whereupon, Mr. Wauson, made the following statements:
Your honor, we're here for the limited purpose of asking that an order of nonsuit be entered. We did submit one, Ms. McCall did, a while back. It's our position, and I reckon that we all have an opportunity to do whatever we think is right for our clients, but I think that the original nonsuit was good. I submitted a brief. The law is pretty clear that, once the clerk takes it into her control and file stamps it, whether she's done so by accident or whatever, that it's good and if that's a position that we think that we have to rely upon.
No objection was made to the above statements and the court permitted the statements to be made. Thereafter, Mr. Wauson was called as a witness by Mr. Cannon.
Mr. Cannon then called Ms. Cynthia Kay McCall, who had been hired by Mr. Wauson *61 to help him in the case, as a witness. When asked "[w]ho did you represent?," she replied:
Today, I'm not here representing anybody... but I'm not here today to make an appearance for anybody, other than we wereI mean, if I was going to represent anyone, I would represent Ivy Renee Strawder and her son.
The voluntary statements made by Mr. Wauson show conclusively that he was not making an appearance in the case and the only reasons for his being in the courtroom at the time and on the date in question, were to act as a friend of the court and to proceed with "asking that a order for nonsuit be entered." The testimony of Mr. Wauson and Ms. McCall did not constitute an appearance in the trial of the crossaction. Both were "forced" to testify. It has been held on several occasions that the mere presence in court of an attorney, retained as counsel by a person formerly a party to the lawsuit, does not constitute a general appearance, unless the attorney seeks a judgment or an adjudication on some question. See St. Louis & S.F. R.R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75 (1918); Smith v. Amarillo Hosp. Dist, 672 S.W.2d 615, 617 (Tex.App.Amarillo 1984, no writ); Investors Diversified Serv. v. Bruner, 366 S.W.2d 810, 815 (Tex.Civ. App.Houston 1963, writ ref'd n.r.e.); Crockett v. Diffie, 137 S.W.2d 167, 169 (Tex.Civ.App.Texarkana 1940, no writ); Lindsey v. Ferguson, 80 S.W.2d 407, 409 (Tex.Civ.App.Eastland 1935, no writ). In view of the statements by Mr. Wauson and Ms. McCall that they were not making an appearance in the cross-action then being tried before the court, and in view of the further statement made by Mr. Cannon:
We filed a cross action. [The judge] holds the nonsuit for null. Then they [Strawder] nonsuit. Then they say they're not here, they're friends of the court,
we hold that the attorneys for Ivy Renee Strawder did not make an appearance at the trial of the cross-action.[7] The question of the nonsuit, raised by Mr. Wauson, was not connected with the trial of the crossaction.
The rendition of a judgment by a court which does not have jurisdiction to render the judgment constitutes fundamental error, which can be raised at any time. Fundamental error is either 1) error in assuming jurisdiction when none exists, McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957); or 2) error which directly or indirectly affects the interest of the public generally, Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947).
The courts of this State only have the jurisdiction conferred on them by the Constitution of the State of Texas and statutes of this State. Pope v. Ferguson, 445 S.W.2d 950, 951 (Tex.1969), cert, denied, 397 U.S. 997, 90 S. Ct. 1138, 25 L. Ed. 2d 405 (1970). A court has no inherent jurisdiction beyond the limitations imposed by the source of its existence. Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270, 273 (1939).
The courts of the State of Texas do not have jurisdiction to render personal judgments against a person unless a controversy exists between individuals and the same is legally presented for determination. "`Jurisdiction' is the right and power of a Court to determine a controversy between individuals...." Mitchell v. San Antonio Pub. Serv. Co., 35 S.W.2d 140 (Tex.Comm'n App.1931, holding approved).
A valid judgment cannot be rendered against a person or in favor of another person who is not a party to the proceeding. State Mortgage Corp. v. Traylor, 120 Tex. 148, 36 S.W.2d 440, 443 (1931); Nicholson v. Scurry, 119 Tex. 250, 28 S.W.2d 512, 515 (1930); Lobit v. Crouch, 293 S.W.2d 110, 113 (Tex.Civ.App.Austin 1956, writ ref'd n.r.e.). Nor does a court have jurisdiction to adjudicate the rights of *62 a person who is not a party to the proceeding, the object of which is to enforce or defend a right. Livezey v. Putnam Supply Co., 30 S.W.2d 902 (Tex.Civ.App. Eastland 1930, writ refd).
Rules relating to service of process are mandatory, and a failure to comply therewith, if a judgment be rendered against a party who was not served in accordance with those rules (and who did not waive service of citation or appear voluntarily) renders the judgment void. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (Tex.Comm'n App.1935, opin. adopted); Thomas Petroleum Prods, v. Rulon Elec. Co., 609 S.W.2d 890, 892 (Tex. Civ.App.Houston [14th Dist.] 1980, no writ); Nichols v. Wheeler, 304 S.W.2d 229 (Tex.Civ.App.Austin 1957, writ refd n.r.e.); Lemothe v. Cimbalista, 236 S.W.2d 681, 682 (Tex.Civ.App.San Antonio 1951, writ refd).
The mere filing of the lawsuit by Georgia Thomas against the Pipeline Defendants, and the fact that Ivy Renee Strawder intervened in the suit and alleged a cause of action against the same Pipeline Defendants, and who nonsuited the Pipeline Defendants before Georgia Thomas filed a cross-action against Ivy Renee Strawder, as administratrix of the Thomas Estate and as tutrix and next friend of the minor, did not invoke the jurisdiction of the trial court to try the cross-action and render judgment on it to eliminate the necessity of service of citation of the cross-action on Ivy Renee Strawder, since she did not waive service of citation and did not make an appearance, individually or by attorney, at the trial of the cross-action. See Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6, 8 (Tex.1931); Warner v. Irving Lumber Co., 584 S.W.2d 893, 894 (Tex.Civ.App.Dallas 1979, no writ).
Georgia Thomas also contends that Ivy Renee Strawder, in her capacities as personal representative of the estate and successor of Timmy Lee Thomas, and as next friend and tutrix of Timmy Tyrell Strawder, as qualified by a Louisiana Court, and who has not so qualified by a Texas Court, cannot bring suit in a Texas Court relating to the Thomas Estate. She relies primarily upon TEX.PROB.CODE ANN. § 107 (Vernon 1980), McAdams v. Capitol Prod. Corp., 810 S.W.2d 290 (Tex. App.Fort Worth 1991, writ denied), and Minga v. Perales, 603 S.W.2d 240 (Tex.Civ. App.Corpus Christi 1980, no writ). She argues that at the time Ivy Renee Strawder filed the nonsuit on September 28, 1990, since "she had not yet received recognition in Texas of her status as administratrix... she had no standing to represent the Estate's interest in the suit." She further argues that the nonsuits that were "filed by Strawder could not be effective to dismiss any claims of the estate since Strawder lacked representative capacity to institute the nonsuits. Accordingly, at the time that Thomas filed her cross-claims against Strawder (on October 2, 1990), there was no nonsuit in effect, and the Estate claims were still properly before the trial court." We do not agree.
In particular, Georgia Thomas invites our attention to the following assertions made in her Motion for Rehearing:
Strawder failed to receive judicial or statutory recognition in Texas of her control of the Estate's pending claims before filing of Thomas' cross-claim. Specifically, Strawder's notice of nonsuit and the facsimile nonsuit filed on September 28, 1990, were both attempted before: (1) filing of a record of Strawder's appointment in Louisiana as administratrix of the estate with the trial court, (2) a hearing on Strawder's intervention and plea in abatement, or (3) the substitution of Strawder's counsel as counsel for the estate in the matter pending before the trial court.
* * * * * *
[W]hen Strawder finally appeared by her Petition in Intervention on September 7, 1990, she failed to file the authenticated letters of administration from the Louisiana court naming her Administratrix as required by Section 107A of the Probate Code. Tex.Prob.Code Ann. § 107A(b). Neither her nonsuit filed by facsimile on September 28, 1990, nor her *63 filing of October 3, 1990 cured this defect.
The Fort Worth Court of Appeals announced the following rule in McAdams, 810 S.W.2d at 293.
An administrator, appointed by the court of another state, may not be sued in the court of Texas nor act as the legal representative of the estate of Texas. Faulkner v. Reed, 241 S.W. 1002, 1007 (Tex.Comm.App.1922, judgm't. adopted); Eikel v. Burton, 530 S.W.2d 907, 908 (Tex.Civ.App.Houston [1st Dist.] 1975, writ ref'd n.r.e.).
This Court stated in Minga:
The general rule is that a foreign representative cannot sue or be sued in the court of this State. Faulkner v. Reed, 241 S.W. 1002 (Tex.Com.App.1922, jdgmt. adopted); Eikel v. Bristow Corp., 529 S.W.2d 795 (Tex.Civ.App.Houston [1st Dist.] 1975, no writ). The basis for the rule is that no judgment can be rendered against an estate unless it has a legal representative before the court. A foreign representative has no extraterritorial authority; he can only administer such assets as are within the jurisdiction of the court which appointed him. Thus, a valid administration of assets in Texas must be through a representative duly appointed in Texas. Faulkner v. Reed, supra.
Minga, 603 S.W.2d at 242.
In Faulkner v. Reed, 241 S.W. 1002 (Tex. Comm.App.1922, judgment adopted), the Court said:
No judgment can be rendered against an estate unless it has a legal representative before the court. An administrator, appointed by the courts of Ohio, could not by virtue of said appointment sue or be sued in the courts of Texas, or in any way act as legal representative of said estate in Texas. An administrator is the agent solely of the court appointing him, clothed with authority to administer only such assets as are within the jurisdiction of the court making such appointment. In other words, an administrator has no extraterritorial authority, (citation omitted).
Id. at 1007.
TEX.PROB.CODE ANN § 107 (Vernon 1980) applies only in a case when the foreign executor or administrator prosecutes a suit in Texas to recover a debt due the decedent in the case at bar. It is undisputed that Ivy Renee Strawder is the personal representative (administratrix) of the Thomas Estate and is the tutrix (guardian) of the minor Timmy Tyrell Strawder, having qualified as such in the State of Louisiana and that Georgia Thomas qualified as administratrix of the Thomas Estate in the State of Louisiana on October 12, 1989, and was removed as such by the Louisiana Court on May 17, 1990.
The record shows that Georgia Thomas filed suit in Wharton County, Texas, which was docketed as "Cause No. 29,447, whereby she sued only the Pipeline Defendants to recover damages for the wrongful death of Timmy Lee Thomas. She sued the defendants in her capacity as an individual and as "representative of the Estate of Timmy Lee Thomas." She was a resident of Louisiana at all times pertinent to this case. It is further shown by the record that she, Georgia Thomas, did not assert any claim against Ivy Renee Strawder as personal representative of the Thomas Estate and as next friend and tutrix of the minor child Timmy Tyrell Strawder until October 2, 1990 (after Ivy Renee Strawder nonsuited the Pipeline Defendants), when she, in her individual capacity as "Crossclaimant and Intervenor", filed a Cross action and Intervention in Cause No. 29,447 against "Ivy Renee Strawder as representative of the estate and successor of Timmy Lee Thomas, and against Ivy Renee Strawder as next friend and tutrix of Timmy Tyrell Strawder, and against Timmy Tyrell Strawder by and through said tutrix and next friend."
It is conclusively shown by the record that Georgia Thomas, Ivy Renee Strawder and Timmy Tyrell Strawder were (and are) residents of the State of Louisiana at all times pertinent to this suit. There is nothing in the record that indicates that either *64 Georgia Thomas or Ivy Renee Strawder was appointed administratrix, ancilliary or otherwise, of the Thomas Estate by a probate court in the State of Texas. Georgia Thomas was a foreign administratrix of the Thomas Estate when she filed suit against the Pipeline Defendants and was not such administratrix when she filed her crossaction and Intervention against the Thomas Estate. Ivy Renee Strawder was a foreign administratrix at all times subsequent to the removal of Georgia Thomas as administratrix of the Thomas Estate. Therefore, under the holdings of Faulkner, Mc-Adams, and Minga, neither Georgia Thomas nor Ivy Renee Strawder could sue the other in a Texas Court or be sued by the other regarding a claim against the Thomas Estate.
As already noted, this appeal is from the final judgment rendered in Cause No. 29,447A which was severed from Cause No. 29,447. This appeal concerns only the awards made to Georgia Thomas in her individual capacity for attorney's fees incurred by her in Cause No. 29,447 and the award of attorney's fees made directly to Paul Webb, the attorney ad litem. The judgment was against "Ivy Renee Strawder, as representative of the Estate and Successor of Timmy Lee Thomas, Ivy Renee Strawder as next friend and tutrix of Timmy Tyrell Strawder and Timmy Tyrell Strawder, by and through said tutrix and next friend." The judgment constitutes fundamental error and is a nullity. The trial court exceeded its authority in rendering judgment against Ivy Renee Strawder in her representative capacities for the recovery of attorney's fees by Georgia Thomas. See Eikel v. Bristow, 530 S.W.2d 907, 908 (Tex.Civ.App.Houston [1st Dist.] 1975, writ ref'd n.r.e.).
Since the trial court did not have in personam jurisdiction of Ivy Renee Strawder in any of her various capacities, the judgment of the trial court in its entirety will be reversed and set aside on jurisdictional grounds. Consequently, we need not decide whether any evidence supports the award of attorney's fees to Georgia Thomas or to Paul Webb, the attorney ad litem.
THE ISSUE OF ATTORNEY'S FEES TO THE ATTORNEY AD LITEM
The appointment of Paul Webb as attorney ad litem was made in Cause No. 29,447. The cross-action was severed from the case and the judgment, rendered in the crossaction and now on appeal, was rendered in Cause No. 29,447-A. The appealed judgment did not rule on the appointment of the attorney ad litem; it assumes, inferentially, that the appointment was valid. The issue of appointment of an attorney ad litem is yet to be determined in the trial of Cause No. 29,447, and was not adjudicated in the trial of Cause No. 29,447-A.
Tex.R.Civ.P. 173 provides that the compensation to be paid the guardian ad litem (attorney ad litem) shall be fixed by the court and taxed as costs. This issue should be determined not by judgment; it should be disposed apart from the judgment by motion and order of the court fixing the amount of the fee to be paid to the guardian ad litem (attorney ad litem) of the minor's estate as a part of the costs. Sheehan v. Southern Pac. Co., 422 S.W.2d 948, 950 (Tex.Civ.App.Houston [1st Dist] 1967, writ ref'd n.r.e.). The issue of compensation, if any, to the ad litem, should be disposed of in the final judgment to be rendered in Cause No. 29,447, which is still pending in the Wharton County District Court.
Concerning the appointment of guardian, we note that the Supreme Court of Texas, in Newman v. King, 433 S.W.2d 420 (Tex. 1968) said:
[displacement of the next friend with a court appointed guardian ad litem, although mandatory when authorized, is authorized only when it "appears to the court: that the next friend has an interest "adverse to the minor".... (Emphasis supplied).
Id. at 421.
Rule 173 has been construed by several appellate courts to mean that if a natural parent has an interest which is not adverse to that of his or her minor child, the trial court should not appoint a guardian ad litem, unless there is a conflict between the *65 interest of the parent and that of the minor, and the court will presume that the parent has the child's best interest in mind and will protect his (or her) legal rights. Texas Employers Ins. Co. v. Keenom, 716 S.W.2d 59, 67 (Tex.App.Houston [1st Dist.] 1986, writ ref'd n.r.e.); Leigh v. Bishop, 678 S.W.2d 572, 573 (Tex.App.Houston [14th Dist.] 1984, no writ); Jones v. Martin, 481 S.W.2d 467, 472-73 (Tex.Civ. App.Texarkana 1972, no writ).
After Paul Webb was appointed attorney ad litem, his only actions concerning the minor were: 1) appearing at the hearing on Georgia Thomas'"Motion to Appoint an attorney ad litem and to deposit the $1,000,000" into the registry of the court, 2) filing a motion requesting the court to reconsider its order granting the nonsuit, 3) filing a general denial in answer to the cross-action filed by Georgia Thomas, 4) making a special appearance at the hearing in the crossaction, where he presented a motion to the jurisdiction, in which he alleged:
3.
This Court does not have jurisdiction over the child TIMMY TYRELL STRADER for the reason that GEORGIA THOMAS has no apparent authority to represent TIMMY TYRELL STRADER in his claim against the Defendants herein. In this connection, Attorney Ad Litem would further show that the parties that allege to represent the child, that being Ivy Renee Strawder, have withdrawn from the case by action of a nonsuit and have alleged that GEORGIA THOMAS has no right to assert any claim for the child. The child resides in Louisiana and has not filed an Answer in this matter prior to the filing of this special appearance.
4.
The assumption of jurisdiction by the Court over this child and his property would offend traditional notions of fair play and substantial justice, depriving said child of due process as guaranteed by the Constitution of the United States; and 5) filing a motion for a continuance of the hearing on Georgia Thomas' cross-action, in which he alleged:
4.
There is pending at this time an appeal in the courts of Louisiana regarding the proper party to represent the interest of TIMMY TYRELL STRAWDER; that the Attorney Ad Litem is of the opinion that until that matter is resolved and the courts in Louisiana determine who is the proper party to represent this child, that any settlement agreement reached could not be approved by the Attorney Ad Litem and possibly would not be in the best interest of the child.
We conclude from his pleadings that he was of opinion that the trial court did not have jurisdiction to render judgment on the cross-action.
DISPOSITION OF THE APPEAL
Since Ivy Renee Strawder was never served with citation on the cross-action, did not waive service of citation and did not make an appearance at the trial of the cross-action, the trial court was without power, authority or jurisdiction to render judgment in the cross-action.
The judgment of the trial court, being void, is reversed in its entirety, is set aside, and the order of severance is vacated.
NOTES
[1] Assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1988).
[2] A female guardian of a minor under Louisiana Law.
[3] The record does not show that the Pipeline Defendants have answered in Cause No. 29,447; nor does the record reveal any further action pertaining to them, save and except the execution by Georgia Thomas of the "Settlement Agreement," hereinbefore noted. It is unclear why Georgia Thomas filed a First Amended Original Petition at this time.
[4] Georgia Thomas did not join in the motion, nor did she file an independent Motion to Reconsider the Order of Nonsuit.
[5] Cause No. 29,447-A is the judgment appealed in this case. It involves only the cross-action filed by Georgia Thomas against Ivy Strawder in her representative capacities.
[6] Quoted by the Supreme Court in General Land Office v. Oxy, U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990).
[7] The judgment in Cause 29,447-A, signed on December 17, 1990, and now on appeal recites that Ivy Renee Strawder, "in her representative capacities, through their respective attorneys of record and announced ready for trial." That recitation is simply not true. No such announcement was made.
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502 F. Supp. 1332 (1980)
Donald KRAUSE, Plaintiff,
v.
SMALL BUSINESS ADMINISTRATION and Merit Systems Protection Board, Defendants.
No. 79 Civ. 5272.
United States District Court, S. D. New York.
December 17, 1980.
*1333 *1334 O. John Rogge, New York City, for plaintiff.
John S. Martin, Jr., U. S. Atty., for the Southern Dist. of New York, New York City, for defendants; Thomas D. Warren, Asst. U. S. Atty., New York City, of counsel.
OPINION
EDWARD WEINFELD, District Judge.
These are cross-motions for summary judgment in an action commenced by Donald Krause, an employee of the Small Business Administration ("SBA"), to review a seven-day suspension from his position as a Supervisory Loan Specialist on the grounds that there was no evidential basis to support the suspension and that the failure to provide him with a trial-type evidentiary hearing upon his appeal to the Merit Systems Protection Board ("MSPB") violated his right to due process under the Fifth Amendment. The defendants, the SBA and MSPB, contend the suspension is valid on the grounds that the applicable procedures, which do not require a trial-type hearing in a seven-day suspension proceeding, were followed that these accord with due process of law, and that the decision to suspend plaintiff was supported by evidence and was neither arbitrary nor capricious.
Upon a word-by-word study of the administrative record, the Court concludes for reasons noted hereafter that the agency action must be upheld and that the procedures followed by the SBA fully satisfied the requirements of due process.
I
Krause's suspension was prompted by a series of events surrounding a loan by the SBA to one Norma Fontane in connection with her purchase of "Norma's Restaurant," located in New York City across the street from the offices of the SBA. An anonymous letter to the SBA asserting that one of its employees, Ben Torrent, had a hidden ownership in Norma's Restaurant and that Fontane was "his girl friend" triggered an investigation by the Division of Security and Investigations ("S&I") into the circumstances whereby the loan which originally was approved by a loan committee of three in the sum of $25,000 was increased the same day to $40,000 without reconvening the committee that gave approval to the $25,000 loan.
As a result of the investigation, the Regional Director of the SBA advised Krause in a detailed letter that it was proposed to suspend him for thirty days pursuant to applicable civil service regulations upon the following grounds:
1. Falsification of the Loan Committee's minutes in violation of SBA regulations;
2. lack of adequate security regarding maintenance of a chronological list to assure that applicants were considered in the order in which they filed their applications;
3. failure to assure documentation of the loan file; and
4. appearance of conflict of interest and/or preferential treatment.
The basis for each charge was set forth in detail.
Bernard Kulik, Deputy Associate Administrator for Operations of the SBA was designated to consider and determine the charges. The letter proposing the thirty-day suspension advised Krause of his right to review the material upon which his proposed suspension was based, his right to reply in writing to the offenses advanced, his right to submit affidavits in support of his reply, and his right to the assistance of counsel in preparing the reply. Krause engaged counsel and upon his request was furnished with various documents including the S&I report. On November 21, 1978, Krause submitted his own written response to the charges, a written response by his attorney and the affidavits of five SBA employees. Thereafter, pursuant to his request, he and his lawyer met with Kulik at the latter's office in Washington, D.C. They were afforded the opportunity to and did speak to each of the charges. Following the meeting, Krause and his lawyer *1335 wrote to Kulik thanking him for the opportunity to meet with him for a discussion of the charges and enclosing additional material relative to the charges. On February 23, 1979, Kulik rendered his decision which indicated that he had given careful consideration to all documents and written responses submitted by Krause and his attorney in resisting the charges, as well as their oral statements made at the Washington meeting. Kulik found the evidence supported three of the charges: (1) that Krause had falsified Loan Committee minutes, although without an intent to defraud; (2) that he had inadequately safeguarded the chronological list of applicants; and (3) that he had failed to ensure proper documentation of the loan file. Kulik concluded, however, that the evidence did not support the charge that Krause had created an appearance of preferential treatment or a conflict of interest.
Kulik decided that a thirty-day suspension was excessive and imposed a suspension of seven calendar days. He sent a copy of the agency decision to Krause which also informed him of his right to appeal to the MSPB and of his right to file a grievance under the SBA Grievance Procedure challenging the merits of his suspension, although no such grievance was filed.[1]
Krause, through his attorney, filed a notice of appeal to the MSPB and requested an evidentiary hearing purportedly under 5 U.S.C. § 7701(a) (1976) at which he could present the testimony of witnesses. He listed the names of six potential witnesses including those whose affidavits had previously been submitted and considered by Kulik. The appeal was assigned to the Seattle Field Office of the MSPB due to the heavy workload of the New York Field Office. Krause's lawyer protested this assignment claiming that for all practical purposes it destroyed the effectiveness of an evidentiary hearing since his client could not afford the expense of travel for himself, his witnesses or his lawyer to Seattle. Dean Wright, Chief Appeals Officer of the Seattle Field Office, informed Krause and his attorney by letter that under the applicable regulation no right to an evidentiary hearing was provided in cases involving suspensions of less than thirty days, and that in such cases, the only issue subject to review on appeal was compliance with authorized procedures, unless it was claimed that the suspension was taken as a result of discrimination on account of race, color, religion, sex or other discriminatory conduct.[2] Wright observed that since the individuals Krause listed as proposed witnesses would have no knowledge of any claimed procedural deficiencies, no purpose would be served by an evidentiary hearing and thus there was no reason why the Seattle Office should not adjudicate the case. On June 21, 1979, the MSPB issued a written decision affirming the suspension and finding that the SBA had complied with the procedural requirements of 5 C.F.R. § 752.302 (1978) in effecting Krause's suspension.
II
In addressing the substance of an agency's action, the scope of judicial review is narrowly confined. Review is based on the administrative record,[3] and the Court's role is to address, not the wisdom or good judgment of the agency's decision, but only whether the agency complied with applicable procedures and whether its actions were arbitrary or capricious.[4] Because a federal *1336 employee may be suspended only "for such cause as will promote the efficiency of the service,"[5] the reasons for a discharge must be rationally related to the good of the service for its decision not to be arbitrary or capricious.[6]
Krause does not claim that the procedures employed for his suspension were below statutory standards,[7] nor does he claim that the reasons advanced for his suspension lack a rational relationship to the efficiency of the service. He does, however, argue that the agency act of suspending him was arbitrary and capricious. Thus the Court considers separately each charge that was upheld and upon which the suspension was based.
A. Falsification of the Loan Committee's Minutes in Violation of Regulations
As of February 1978, the operating procedure governing loan approvals required that a loan application be reviewed by an individual loan officer who was to sign his recommendation which then was submitted for consideration at a meeting of a three-member Loan Review Committee.[8] The procedure stresses that "[i]t is vital that the chairman [Krause] direct the meeting in a manner that will assure in-depth analysis" of a loan request and that committee members shall vote, with the majority prevailing, only "[a]fter a full discussion of both the favorable as well as the unfavorable factors." The procedure also directs that the Committee minutes are to be an official record of what transpired in the meeting; while they need not be verbatim, they must cover the major points of discussion and must be signed by the chairman. The minutes of the meeting in which the Fontane loan was considered clearly do not meet these requirements.
Norma Fontane's initial application dated February 8, 1978 was for a $25,000 loan for a restaurant operation. The loan had been recommended for approval by Henry Staubach, the loan officer. On the morning of February 28, 1978, the Loan Committee, consisting of Krause, Staubach, and John Parowski, the portfolio management representative, met and approved the requested loan. Minutes of that meeting were prepared by Krause. Those minutes state that the approval was of a $40,000 loan and bear the initials of each member of the Committee, which Krause admits to have written,[9] indicating such approval. The circumstances attendant upon this incident were as follows: after the Committee had met and approved the $25,000 loan, a letter from the applicant requesting that it be increased to $40,000 was hand delivered by Ben Torrent to SBA officer Philip Stuart, who in turn brought it to Staubach's attention. Staubach conferred with Krause and the two *1337 agreed to the increase. This action was taken without reconvening the Loan Committee and without consulting Parowski, who at the meeting that morning, was dubious of a $25,000 loan and urged approval of a $15,000 loan as "more realistic" but finally agreed with the other two members on a $25,000 loan. Krause admits that the Loan Committee was not reconvened to consider the requested increase and further acknowledges that Parowski was not privy to the decision to grant Fontane's additional loan request, yet he recorded his initials as well as those of Parowski and Staubach in the approved column of the minutes which indicated that the loan, including the increase, had the unanimous approval of the Committee. This does not reflect, as the procedure requires, what transpired at the meeting; it not only falsely records Parowski's approval, but omits a major point of discussion at the meeting, to wit, the view that a $25,000 loan was questionable. The impropriety of Krause's conduct is not mitigated by his assertion that since he and Staubach, a majority of the Committee, had approved the request for an additional loan, there was no need to contact Parowski. Even assuming that a two-thirds majority favored approval of the additional loan, bypassing a meeting to consider the increased application undermined an important purpose of decision making by the Committee: to inform administrative action with the insight of collegial discussion. It offends common sense and experience for plaintiff to urge as he does that since the approval of two members of the Loan Committee of three was sufficient to increase the loan by $15,000 to $40,000, it was unnecessary to confer with Parowski, the third member who earlier that day had agreed to the $25,000 loan albeit with some misgiving as to that amount. One is moved to ask what is the purpose of the Loan Committee requirement, if one member can so cavalierly be excluded from consideration of a proposed increase? Had Parowski been offered the opportunity, particularly in view of his expressed doubts about the original loan request, he may well have persuaded the majority not to grant the increase. In sum, the agency finding that Krause falsified records in violation of its rules[10] is abundantly, if not overwhelmingly, supported by evidence.
B. Lack of Adequate Security Regarding Maintenance of a Chronological List
As of February 1978, the procedures regarding the keeping of a chronological list[11] provide that because the SBA did not have enough direct loan money available to meet demand, a chronological listing of applicants was to be kept at a central point in each district office to ensure that applicants were not "taken `out of line' when funds do become available." Obviously its clear purpose was to assure fair and impartial consideration of all applications.
Efforts to obtain the list during the S&I investigation proved fruitless with various excuses being given for its nonproduction. The investigators were unable to ascertain whether the Norma's Restaurant loan application had been expedited and given priority over those of other applicants. Although the regulation does not set forth the precise manner in which the list was to be kept and no formal method of keeping it was prescribed until after the events here in question, Krause was charged with its proper maintenance; indeed, he acknowledged responsibility for the list and participated in the decision to discard the first 200 names which allegedly included Fontane's name. Krause himself described the list as "a haphazard affair" and as "easily accessible to anyone." Torrent, who should not have had access to the list claimed to have placed Fontane's name on it. Moreover, even assuming that the portion of the list containing Fontane's name was destroyed innocently, as Krause claims, because of obsolescence, *1338 its destruction reinforces the findings of inadequate safeguards in light of 13 C.F.R. § 105.509(a)(3) (1978), which provided that no SBA employee shall "[r]emove, obliterate or destroy any record, account, paper or other thing filed with or relating to Government or public business." Thus, the administrative finding that Krause maintained inadequate security surrounding the list finds ample support in the administrative record.
C. Failure to Ensure Documentation of the Loan File
Krause admits that the only factual basis for granting the additional $15,000 loan request, other than the material accompanying the original request for a $25,000 loan, was Fontane's letter of February 28, 1978, hand delivered by Ben Torrent sometime after the initial request had been approved that morning. The sole justification for the additional request is an undocumented statement that a "major portion" of the restaurant equipment purchased from the SBA was not in proper working order. The letter continues with the conclusory statement that Fontane's evaluation of "the situation as a whole" finds the original request insufficient and that the business was "undercapitalized." Based solely on these self-serving and unsupported statements, the loan increase was granted. No investigation was made as to the verity of the claim that the purchased equipment was in disrepair, no inquiry was made as to the cost of the claimed repairs necessary to put the equipment in good working order, and no analysis or justification was made of the alleged need for increased capitalization. Indeed, as stated by Kulik in upholding this charge, "the entire justification for the increase appears to be the applicant's letter, which could just as well have requested a total loan of $35,000 or $50,000 as $40,000." The very fact that the letter was hand delivered by Torrent, fast upon the heels of the approval of the $25,000 loan, should itself have alerted Krause to the need for investigation and documentation to determine that there was a factual basis for the requested loan increase, particularly since he knew of Torrent's relationship to Fontane. The SBA was fully warranted in its conclusion that the documentation for the loan increase was inadequate.
Under all the circumstances surrounding plaintiff's conduct with respect to the three charges that were sustained, it was reasonable for the SBA to impose a seven-day suspension; indeed, it was a judgment tempered with compassion and mercy. Under the limited scope of review, the Court holds that Krause's contention that the SBA's actions or findings were arbitrary or capricious is without foundation.
III
Krause further contends that the procedures followed in imposing his suspension deprived him of due process of law. He does not dispute that these procedures fully met with the statutory requirements. According to the statutes and regulations then in effect, a federal employee facing suspension for thirty days or less was not entitled to a trial-type evidentiary hearing either before his employer or before the MSPB.[12] Krause argues that the failure of Congress and the Civil Service Commission to provide him with the full panoply of rights of a trial-type adversary proceeding deprived him of his due process right.
Whatever controversy may have existed in earlier times,[13] it is now hornbook law that one cannot be deprived of a protectible property or liberty interest without procedural due process safeguards. Krause claims that he had an enforceable expectation of continued and uninterrupted public employment by the SBA, subject to dismissal or suspension only "for such cause as will *1339 promote the efficiency of the service."[14] The government does not seriously dispute this, although it questions that it is a protectible interest since a seven-day suspension is "de minimis." The fact that the suspension was for only seven days and involved a week's loss of salary does not diminish Krause's constitutional right to protection, although it may be considered on the issue of the nature of the hearing to be accorded in protecting the right.[15] Just as a ten-day suspension from school "is not de minimis,"[16] so too a seven-day suspension with loss of pay may not be imposed in disregard of due process requirements.
Krause also contends, which the government disputes, that he has a liberty interest in the protection of his good name and reputation.[17] The government's position is that since the finding that Krause had falsified records with respect to the loan expressly absolved him from an intent to defraud, it did not imply dishonest or other errant behavior. This Court does not agree. A finding by a governmental agency that an employee falsified official records, whatever his intent, suggests to the average person dishonest conduct that reflects upon the employee's basic integrity. It is a stigma which tarnishes his employment record and which seriously impairs his opportunity for other employment should he decide to leave government service.[18] Indeed, the adverse comment in plaintiff's employment record may hinder or defer normal promotion to a higher position with corresponding financial gain and other benefits. The government makes the further contention that since it has not published its charges against Krause, no liberty interest is implicated,[19] but the fact remains that it is a permanent blot on his record. Plaintiff's interest in protecting his name and record against the charge is sufficient to invoke the procedural due process guarantees of the Fifth Amendment.[20]
IV
Having found that plaintiff has both a property and liberty interest at stake with respect to the charges against him, the question remains "what process is due"[21] whether the procedure that was applied, which gave Krause fair notice of the charge and an opportunity to be heard, was sufficient to satisfy the mandates of due process.
Due process is a relative term and the kind of a hearing that is required depends upon the particular situation at issue and the interests involved.[22] The term "hearing" is a "verbal coat of too many colors."[23] Due process "`is not a technical conception with a fixed content unrelated to time, place and circumstances'"[24]*1340 but involves "intensely practical matters."[25] Whether the administrative proceeding in a given situation meets constitutional standards of fair notice and an opportunity for hearing appropriate to the nature of the case depends upon an accommodation of the competing interests involved. This requires an evaluation of three factors:
"[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the safeguard and administrative burdens that the additional or substitute procedural requirement would entail."[26]
Thus, the Court considers each of these factors.
Obviously, plaintiff had a legitimate interest in continued and uninterrupted employment unless he engaged in conduct that warranted his supension. So, too, plaintiff, as previously noted, had an interest in protecting himself against a charge of stigmatizing conduct which, if sustained, may affect an opportunity for promotion within his agency or may impair an opportunity for outside employment, if he decides to leave governmental service.
On the other hand, the SBA, the plaintiff's employer, was entitled for the good of its service to enforce its regulations that required employees to keep accurate records of loan transactions. These regulations serve the public interest by giving assurance that the governmental agency is functioning effectively, competently and honestly.[27] While these important governmental interests require prompt and expeditious action, a full-scale trial with its full panoply of rights would necessarily result in delay and additional expense.
We next consider the risk of an erroneous deprivation under the procedures applied weighed against the probable value, if any, of additional or substitute safeguards. As already noted, the procedures that were applied afforded Krause substantial protections: timely and adequate notice of the charges against him; access to all evidence on which the charges were based; a full copy of the investigator's report; representation by counsel; the opportunity to respond in writing to the charges and to present evidence on his own behalf; an informal hearing before an official other than the one who had initiated the proposed suspension, yet with authority to reject or sustain the proposed action; a written decision based on the record with a detailed statement of the findings and the reasoning upon which it was based; and finally, a right of review as to whether the procedural regulations had been followed.[28] Krause contends that he was entitled to more: the right to subpoena and cross-examine witnesses and the full panoply of rights incidental to a formal trial-type hearing. But in the circumstances of this case, a full-scale trial would have afforded plaintiff no greater protection than that provided him under the procedure invoked. In response to the investigative report with its detailed charges, plaintiff submitted his own self-serving affidavit, a statement of his attorney and the affidavits of fellow employees who supported his position and sought to exonerate him of the charges. Did he intend at a trial-type hearing to cross-examine his own supporting witnesses to challenge *1341 the verity of their statements surrounding the Fontane loan? It is true that he indicated an intention to call Parowski as a "possible adverse witness," but it was not disputed that with respect to the $15,000 increase in the loan approval Parowski was not consulted nor was the Loan Committee reconvened. This was acknowledged by plaintiff.
The determination of the charges required a value judgment as to the propriety of conduct based upon facts that were not in meaningful dispute.[29] There is no contention that cross-examination of witnesses might have revealed a different set of circumstances surrounding the Fontane loan. Short of the witnesses personally appearing before the hearing examiner, every scrap of available evidence to resist the proposed suspension was submitted on his behalf. Further, there is no contention that Kulik, the hearing officer, was not impartial.[30]
The procedures invoked to evaluate the charges provided Krause with a fair and meaningful opportunity to be heard and to present all evidence in rebuttal before his suspension was effected. Viewed against the substantial procedural protections that were accorded Krausenotice of the charges, access to the Government's investigation file, and the opportunity to present evidence, to be represented by counsel, and to be heard orally before the Trial Examiner the probable value of a full dress trial would have been an exercise in futility and in no meaningful way would have provided additional safeguards to protect his property or liberty interests.[31] As the Supreme Court has stated, "the Due Process Clause has never been construed to require that the procedures used to guard against erroneous deprivation of a protectible `property' or `liberty' interest must be so comprehensive as to preclude any possibility of error."[32]
Even if some incremental gain in accuracy could be obtained by expanding procedural protections to include a trial-type hearing, the government's interest outweighs such considerations. It has been observed that in striking the appropriate due process balance "the government's interest, and hence that of the public, in conserving fiscal and administrative resources is a factor that must be weighed."[33] To grant a full evidentiary hearing in all cases where suspensions of thirty days or less (now fourteen days or less)[34] are *1342 sought would not only impose a heavy financial burden upon the Government but would seriously interfere with the normal administrative functioning of the agency involved. While no precise figures have been tendered by either party to this litigation, we note the Supreme Court's comment, "that experience with the constitutionalizing of governmental procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial."[35] This view is readily supported in the light of the 2,800,000 civilian employees currently in the Government work force.[36]
A weighing of the factors specified in Mathews compels the conclusion that the administrative procedures followed with respect to the charges leading to Krause's seven-day suspension fully accorded him due process. The Government's motion for summary judgment thus is granted. Krause's cross-motion for summary judgment is denied.
So ordered.
NOTES
[1] Had plaintiff filed a grievance, an evidentiary hearing could have been held in the discretion of the examiner appointed to hear the grievance. SOP 37-71.
[2] 5 C.F.R. § 752.304 (1978). Krause has not raised any charge of discrimination.
[3] See, e. g., Doe v. Hampton, 566 F.2d 265, 272 (D.C.Cir.1977); Polcover v. Secretary of Treasury, 477 F.2d 1223, 1226 (D.C.Cir.), cert. denied, 414 U.S. 1001, 94 S. Ct. 356, 38 L. Ed. 2d 237 (1973); Penna v. United States Army Corps of Engineers, 490 F. Supp. 442, 443 (S.D. N.Y.1980).
[4] See, e. g., United States v. Professional Air Traffic Control Org'n, 438 F.2d 79, 80-81 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S. Ct. 1373, 28 L. Ed. 2d 661 (1971); McTiernan v. Gronousky, 337 F.2d 31, 34 (2d Cir. 1964); Penna v. United States Army Corps of Engineers, 490 F. Supp. 442, 443-44 (S.D.N.Y.1980).
[5] 5 U.S.C. § 7501(a) (1976); cf. 5 U.S.C. § 7503(a) (Supp. II 1978).
[6] See McClelland v. Andrus, 606 F.2d 1278, 1290-91 (D.C.Cir.1979); Doe v. Hampton, 566 F.2d 265, 272-73 (D.C.Cir.1977); Penna v. United States Army Corps of Engineers, 490 F. Supp. 442, 444 (S.D.N.Y.1980); Grebosz v. United States Civil Service Comm'n, 472 F. Supp. 1081, 1085-87 (S.D.N.Y.1979).
[7] The applicable statutes and regulations are those that existed prior to the Civil Service Reform Act of 1978, Pub.L.No. 95-454, 92 Stat. 1119 (Oct. 13, 1978). That Act became effective on January 11, 1979, Pub.L.No. 95-454, § 907, 5 U.S.C. § 1101 note (Supp. II 1978), and contained a savings clause declaring that its provisions were inapplicable to any administrative proceedings pending as of its effective date. Pub.L.No. 95-454, § 902(b), 5 U.S.C. § 1101 note (Supp. II 1978). Krause received notice of his proposed suspension by letter dated November 13, 1978, and the administrative proceedings surrounding his suspension were still pending on January 11, 1979. These proceedings are thus governed by pre-existing law. Ellis v. Merit Systems Protection Board, 613 F.2d 49 (3d Cir. 1980) (per curiam); Kyle v. Interstate Commerce Comm'n, 609 F.2d 540 (D.C.Cir.1980) (per curiam); Penna v. United States Army Corps of Engineers, 490 F. Supp. 442, 445 (S.D.N.Y.1980); 5 C.F.R. § 1201.191(b) (1980). That law may be found at 5 U.S.C. §§ 7501-7512 (1976) and 5 C.F.R. §§ 752.301-.304 & 772.307(a) (1978).
[8] Appendix 23, SOP 50-10.
[9] Krause stated it was his normal practice when chairing the Loan Review Committee to put the initials of the other members of the Committee on the minutes indicating under an appropriate column their approval or disapproval of loans. T. 112.
[10] 13 C.F.R. § 105.509(a) (1978), in pertinent part provides that no employee shall:
(1) While acting as an SBA employee, make false records or accounts.
(2) Falsify any record, account, paper or other thing filed with or relating to Government or other public business.
[11] Bulletin No. 14, SOP 50 10.
[12] 5 U.S.C. § 7501 (1976); 5 C.F.R. § 752.301 .304 (1978).
[13] Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972); Graham v. Richardson, 403 U.S. 365, 374, 91 S. Ct. 1848, 1853, 29 L. Ed. 2d 534 (1971).
[14] 5 U.S.C. § 7501(a) (1976); cf. 5 U.S.C. § 7503(a) (Supp. II 1978).
[15] Goss v. Lopez, 419 U.S. 565, 575-76, 95 S. Ct. 729, 737, 42 L. Ed. 2d 725 (1975).
[16] Id. at 576, 94 S.Ct. at 737.
[17] Paul v. Davis, 424 U.S. 693, 702-10, 96 S. Ct. 1155, 1161, 47 L. Ed. 2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 573-74, 92 S. Ct. 2701, 2707, 33 L. Ed. 2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 510, 27 L. Ed. 2d 515 (1971).
[18] Paul v. Davis, 424 U.S. 693, 702-10, 96 S. Ct. 1155, 1161, 47 L. Ed. 2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 573-74, 92 S. Ct. 2701, 2707, 33 L. Ed. 2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 510, 27 L. Ed. 2d 515 (1971); United States v. Lovett, 328 U.S. 303, 316, 66 S. Ct. 1073, 1079, 90 L. Ed. 1252 (1946).
[19] See Board of Curators v. Horowitz, 435 U.S. 78, 83-84, 98 S. Ct. 948, 951, 55 L. Ed. 2d 124 (1978); Bishop v. Wood, 426 U.S. 341, 348-49, 96 S. Ct. 2074, 2079, 48 L. Ed. 2d 684 (1976); Longarzo v. Anker, 578 F.2d 469, 472 (2d Cir. 1978).
[20] Cf. Doe v. United States Civil Serv. Comm., 483 F. Supp. 539, 570-71 (S.D.N.Y.1980).
[21] Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972).
[22] Cf. Child v. Beame, 412 F. Supp. 593, 607 (S.D.N.Y.1976).
[23] United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 39, 73 S. Ct. 67, 70, 97 L. Ed. 54 (1952) (Frankfurter, J., dissenting). See also Mahan v. Howell, 410 U.S. 315, 329, 93 S. Ct. 979, 987, 35 L. Ed. 2d 320 (1973).
[24] Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230 (1961) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 162-63, 71 S. Ct. 624, 643, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring)).
[25] Goss v. Lopez, 419 U.S. 565, 578, 95 S. Ct. 729, 737, 42 L. Ed. 2d 725 (1975).
[26] Matthews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976).
[27] Cf. Arnett v. Kennedy, 416 U.S. 134, 168, 94 S. Ct. 1633, 1651, 40 L. Ed. 2d 15 (1974) (Powell, J., concurring in part and concurring in the result in part).
[28] Cf. 5 U.S.C. § 7501 (1976); 5 C.F.R. § 752.301 .304 (1978).
[29] Cf. Board of Curators v. Horowitz, 435 U.S. 78, 90, 98 S. Ct. 948, 951, 55 L. Ed. 2d 124 (1978); see Mathews v. Eldridge, 424 U.S. 319, 343-45, 96 S. Ct. 893, 907, 47 L. Ed. 2d 18 (1976).
[30] Cf. Arnett v. Kennedy, 416 U.S. 134, 199, 94 S. Ct. 1633, 1666, 40 L. Ed. 2d 15 (1974) (White, J., concurring in part and dissenting in part).
[31] See Board of Curators v. Horowitz, 435 U.S. 78, 82-90, 98 S. Ct. 948, 951, 55 L. Ed. 2d 124 (1978); Mathews v. Eldridge, 424 U.S. 319, 334-49, 96 S. Ct. 893, 907, 47 L. Ed. 2d 18 (1976); Goss v. Lopez, 419 U.S. 565, 581-84, 95 S. Ct. 729, 737, 42 L. Ed. 2d 725 (1975).
[32] Mackey v. Montrym, 443 U.S. 1, 13, 99 S. Ct. 2612, 2618, 61 L. Ed. 2d 321 (1979); see Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S. Ct. 2100, 2103, 60 L. Ed. 2d 668 (1979) ("[T]here simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations."); Cofone v. Manson, 409 F. Supp. 1033, 1042 (D.Conn.1976) ("The due process clause does not require procedural safeguards as an end in themselves; there must be a demonstration that the safeguard in question will measurably increase the protection afforded the right at issue.")
[33] Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 909, 47 L. Ed. 2d 18 (1976).
[34] It should be noted that Congress recently reviewed the procedure used to suspend government employees, and in lowering the length of the suspension needed to establish a statutory right to a trial-type hearing from more than thirty to more than fourteen days, explicitly approved the procedures followed in Krause's case for suspension of fourteen days or less. Compare 5 U.S.C. §§ 7501 7514 (Supp. II 1978) with 5 U.S.C. §§ 7501 7512 (1976). In this light, it is easy to distinguish by the length of the suspension alone the case of Keane v. Berry, 416 F. Supp. 858 (D.Ariz.1976), in which the court concluded that due process requires a trial-type hearing before a probationary federal employee could be suspended for thirty days. Id. at 859 69. Keane is fully consistent with both the new procedural balance set by Congress and this Court's ruling in the instant case.
[35] Mathews v. Eldridge, 424 U.S. 319, 347, 96 S. Ct. 893, 908, 47 L. Ed. 2d 18 (1976).
[36] Report to Congress of the United States by the Comptroller General 29 (1980).
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846 S.W.2d 107 (1992)
Oddie O. JONES and wife, Naomi Jones, Appellants,
v.
FIRST NATIONAL BANK OF ANSON, Appellee.
No. 11-91-147-CV.
Court of Appeals of Texas, Eastland.
December 31, 1992.
Rehearing Denied December 31, 1992.
*108 James D. Norvell, Tom Mcllhany, Norvell & Associates, Abilene, for appellants.
Gary M. Brown, Abilene, for appellee.
OPINION
McCLOUD, Chief Justice.
This case involves the compulsory counterclaim rule, res judicata, and privity.
Plaintiffs, Oddie 0. Jones and wife, Naomi Jones, sued the First National Bank of Anson. The trial court granted the bank's motion for summary judgment. Plaintiffs appeal. We affirm.
On April 9, 1986, Oddie 0. Jones executed a promissory note payable to the First National Bank of Anson in the principal sum of $28,595.62 due on April 9, 1987. The note was not paid on the due date. On November 30, 1987, Naomi Jones delivered to the bank a $19,000.00 check from the Farmers Home Administration made payable to Oddie O. Jones and Naomi Jones. A bank teller deposited the check into the "Oddie or Naomi Jones" regular joint checking account. The teller made the following notation on the deposit slip: "FMHA Loan Not Income." The words "Not Income" were underlined by the bank teller. On December 1, 1987, the bank offset from the account of Oddie O. Jones and Naomi Jones the sum of $19,363.65, leaving a "0" balance. On that date, the bank wrote Oddie O. Jones informing him that it had exercised its right pursuant to the provisions of the April 9, 1986, note to offset from Jones' account the sum of $19,363.65. In the letter, the bank informed Jones that after the offset Jones owed a balance of $14,872.32 on the note and that unless the balance was paid by December 15, 1987, the bank would seek legal action to collect the unpaid balance.
On October 26, 1988, the bank sued "Oddie Jones" for the unpaid balance owed on the April 9, 1986, note. The bank also sought foreclosure of its security agreement covering certain farm related personal property. Naomi Jones, who had not signed the note, was not named as a defendant in the suit. On January 3, 1989, the 259th District Court entered a default judgment and an order for writ of possession against "Oddie Jones."
In the instant case, plaintiffs alleged numerous causes of action against the bank resulting from the bank's $19,363.65 offset against plaintiffs checking account. Plaintiffs alleged that, because of the difficulties with their farming operation, the bank had often renewed and extended their farm loans. They contended that a bank officer had told Oddie 0. Jones back in the "1970's" when the bank was attempting to get Jones' banking business that the bank would "stick" with Mr. Jones "through thick and thin." Plaintiffs urged that Oddie 0. Jones had only a fourth grade education and was unable to read and write. They alleged that the bank was aware of this fact and did not advise Jones of the bank's purported right of offset prior to the time the bank exercised such purported right. Plaintiffs urged that the $19,000.00 deposit was a "special deposit." Plaintiffs *109 alleged violations of the Texas Deceptive Trade Practices-Consumer Protection Act, TEX.BUS. 17.41 et seq. (Vernon 1987 negligent misrepresentation; conversion; breach of fiduciary duty; breach of duty of good faith and fair dealing; estoppel; and waiver. The bank urged, among other defenses, the compulsory counterclaim rule and res judicata in its motion for summary judgment.
The significant issue is the effect of the default judgment rendered against Oddie 0. Jones in favor of the bank. TEX. R.CIV.P. 97(a) provides in part:
A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
We agree with the well reasoned opinion in Jack H. Brown & Company v. Northwest Sign Company, 718 S.W.2d 397 (Tex. App.Dallas 1986, writ ref'd n.r.e.), where the Dallas Court applied the "logical relationship" test to determine if a claim arises out of the "transaction or occurrence" that is the subject matter of the opposing party's claim.
When the bank sued Oddie 0. Jones on October 26, 1988, the issue was the balance owed on the April 9, 1986, note signed by Oddie 0. Jones. The bank had previously notified Oddie 0. Jones that it had exercised its right to the $19,363.65 offset. The bank's petition clearly stated the amount of principal and interest owed on the note.
The primary issue in the instant case is whether the bank properly offset the $19,363.65. There is a logical relationship between the suit filed by the bank (which involved the offset) and the instant suit filed by plaintiffs (which also involves the offset). We hold that the claim being asserted in the instant case by Oddie 0. Jones arose out of the transaction or occurrenee that was the subject of the bank's claim for the unpaid balance on the note. See Bailey v. Travis, 622 S.W.2d 143 (Tex. Civ.App.Eastland 1981, writ ref'd n.r.e.). The compulsory counterclaim rule applies to default judgment cases. Jack H. Brown & Company v. Northwest Sign Company, supra.
Plaintiffs argue that, since she was not sued by the bank for the unpaid balance on the note, Naomi Jones' rights could not be affected by the default judgment. We disagree. Our Supreme Court in Getty Oil Company and Texaco Inc. v. Insurance Company of North America, 845 S.W.2d 794 (Tex.1992), recently stated:
Under Texas law, a former judgment bars a second suit against all who were in "privity" with the parties to the first suit. Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex.1971). There is no general definition of privity that can be automatically applied in all res judicata cases; the circumstances of each case must be examined. See Dairyland County Mutual Ins. Co. of Texas v. Childress, 650 S.W.2d 770, 773-74 (Tex. 1983); Benson, 468 S.W.2d at 363.
The April 9, 1986, note was a "community liability" even though Naomi Jones was not personally liable for the note signed only by Oddie 0. Jones. Latimer v. City National Bank of Colorado City, 715 S.W.2d 825 (Tex.App.Eastland 1986, no writ). The community property owned by Oddie 0. Jones and Naomi Jones was liable to satisfy the bank's default judgment. See Cockerham v. Cockerham, 527 S.W.2d 162 (Tex.1975). The record reflects that the proceeds received from the bank were used in plaintiffs' farming operations. The court in Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971), stated:
[P]rivity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.
*110 We hold that Naomi Jones was in privity with her husband, Oddie 0. Jones, and that the default judgment rendered against Oddie 0. Jones, wherein he failed to file a compulsory counterclaim, is binding on Naomi Jones by the doctrine of res judicata.
Both plaintiffs and the bank discuss in their briefs TEX.FAM.CODE ANN. §§ 5.22 and 5.24 (Vernon 1975). Plaintiffs cite Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974), and argue that the doctrine of "virtual representation" was abolished by Section 5.22. Therefore, they contend that, since she was not named as a party when the bank sued Oddie 0. Jones, Naomi Jones could not be bound by res judicata. The bank argues that, since the note was signed only by Oddie 0. Jones, the bank could presume under Section 5.24 that the "indebtedness" was subject to the sole management, control, and disposition of Oddie 0. Jones. Therefore, the bank contends that the doctrine of "virtual representation" was not abolished in this type of situation. See Audish v. Clajon Gas Company, 731 S.W.2d 665 (Tex. App.Houston [14th Dist.] 1987, writ refd n.r.e.).
We hold that Sections 5.22 and 5.24 are not controlling. Both of these sections refer to "property". Here, we are concerned with "liability." See TEX.FAM.CODE ANN. § 5.61 (Vernon 1975 & Supp.1993). The promissory note was a community liability, not a community asset. The court in Carlton v. Estate ofEstes, 664 S.W.2d 322 (Tex. 1983), pointed out that the doctrine of virtual representation, which was abolished in Cooper v. Texas Gulf Industries, Inc., supra, applied "only where one spouse has attempted to represent the interest of both spouses in a suit directly concerning the community property."
The claims of Oddie 0. Jones are barred because of his failure to present his present claims as a counterclaim when he was sued on the promissory note by the bank. The claims of Naomi Jones are barred by the doctrine of res judicata because she was in privity with her husband.
The judgment of the trial court is affirmed.
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153 A.2d 122 (1959)
John H. GANNETT et al.
v.
OLD COLONY TRUST CO., Trustee, et al.
Supreme Judicial Court of Maine.
June 23, 1959.
Sanborn & Sanborn, Augusta, for plaintiffs.
Bingham, Dana & Gould, Boston, Mass., John E. Willey, Portland, Brooks Brown, Jr., Augusta, for defendants.
Before WILLIAMSON, C.J., and WEBBER, TAPLEY, DUBORD and SIDDALL, JJ.
WEBBER, Justice.
On report. Plaintiffs seek interpretation of the will of the late Guy P. Gannett, and specifically that portion of the will which reads as follows:
"The trust shall end upon the death of the last of Jean, John and Madeleine Jean and the trustees shall pay over the principal of the trust at that time by right of representation to my issue then living." (Emphasis ours.)
The problem arises from the fact that whereas Jean is the natural daughter and Madeleine Jean the natural granddaughter of the testator, John is his adopted son. Moreover, John has children now living and who were living when the testator executed his will. If issue of John survive *123 the stated contingency, will they qualify as takers (by right of representation) in the capacity of "issue" of the testator? We answer in the affirmative.
The word "issue" does not have such a fixed and limited meaning that it cannot vary with the intention of the testator who uses it. Within the four corners of the will itself may be found substantial indication that when the testator employed the phrase "my issue" he intended to include the issue of his adopted son. He established three equal life estates, one of which was for the benefit of "my son, John H. Gannett." The testator's failure to make any distinction between his adopted child and his natural children is significant. Moreover, in event of John's death, his issue were to take his share of the income for the duration of the trust which might easily continue for many years thereafter. It would appear most unlikely that the testator would thus provide income benefits for the issue of his adopted child which might be long extended, but in the next breath would cut them off completely from any share in the corpus. Any apparent inconsistency at once disappears if we but recognize that the testator thought of John as though he were a natural son and of John's issue then living as though they were the natural grandchildren of the testator. That such was his intention is fully confirmed by evidence of the circumstances existing at the time the will was made. The will was prepared for the testator by a competent attorney who was, however, unfamiliar with the testator's family circumstances and totally unaware of John's status as an adopted child. The testator's concern as expressed to his scrivener was for his "grandchildren" in which category he obviously included John's children toward whom he felt as great a love and affection as he entertained for those of his blood. The words "my issue" were selected by the scrivener in ignorance of any problem of adoption. They were adopted by the testator as words which would effectuate his intention to place the share of each of his children, including John, in the line of that child by right of representation. We are satisfied that any exclusion of John's issue from a share of the corpus was furthest from the testator's thought and purpose.
Seldom indeed is litigation involving the interpretation of a will conducted in such an atmosphere of family unity and affection as is apparent here. There is neither conflict nor dispute and all agree that in every aspect of family life and family finances the testator regarded John as his natural son and treated him and the natural children with perfect equality. The quality of evidence so unselfishly furnished by those who have the most to lose cannot be lightly disregarded. It is apparent that in this case the testator, if he had been aware of any possible ambiguity in the use of the words "my issue", would have substituted therefor the words "their issue" in order clearly to effectuate his intention. The will as written should be so construed.
The guardian ad litem, in faithful discharge of his duty to bring to the attention of the court every possible adverse contention, has suggested that the court should not decide the questions raised in advance of the happening of contingencies which make it necessary to do so. If, for example, John should ultimately die without issue, no problem involving the interpretation of the words "my issue" would ever arise. That the court has on occasion refrained as a matter of judicial policy from prematurely deciding issues has been recognized. Fiduciary Trust Co. v. Brown, 152 Me. 360, 131 A.2d 191. It has never been questioned, however, that the court has power to act in an appropriate case before a contingency occurs. Haseltine v. Shepherd, 99 Me. 495, 503, 59 A. 1025. We are satisfied that this is such a case. If decision must await the death of the last of John, Jean and Madeleine Jean, the court will lose the benefit of the testimony of the very persons who can best describe the circumstances which existed when the testator made his will. The scrivener, also, *124 might then be unavailable to explain how the phrase "my issue" happened to be used. A decision now will eliminate the risk of a great injustice which might conceivably result if the court were compelled to act years hence in an evidentiary vacuum. Justice requires that we eliminate unnecessary delay. The entry will be
Case remanded for a decree in accordance with this opinion. The costs and expenses of the guardian ad litem and each of the parties, including reasonable counsel fees, to be fixed by the sitting justice after hearing, and paid out of assets in the estate.
SULLIVAN, J., did not sit.
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846 S.W.2d 414 (1992)
Inez WEIMAN, Appellant,
v.
ADDICKS-FAIRBANKS ROAD SAND COMPANY d/b/a A-F Sand & Landfill, Richard H. Martini, and Richard A. Martini, Appellees.
No. B14-91-01280-CV.
Court of Appeals of Texas, Houston (14th Dist).
December 23, 1992.
Rehearing Denied February 4, 1993.
*416 Steven E. Halpin, Houston, for appellant.
Jimmy Williamson, Houston, for appellees.
Before MURPHY, ROBERTSON and CANNON, JJ.
OPINION
CANNON, Justice.
This is an appeal of a summary judgment. Inez Weiman ("Weiman") sued Addicks-Fairbanks Road Sand Company and its principal operating officers, Richard H. and Richard A. Martini, (collectively "Addicks-Fairbanks") for trespass, conversion, waste, and failure to close a landfill in connection with Addicks-Fairbanks' operation of a sandpit and landfill on her land. The trial court granted Addicks-Fairbanks' motion for summary judgment based on res judicata, collateral estoppel, and compulsory counterclaim affirmative defenses. Weiman appeals. We affirm in part and reverse in part.
For a number of years, the Weimans had leased a tract of land to Addicks-Fairbanks, the latest lease running from January 1, 1984, to January 1, 1989. Under the lease Addicks-Fairbanks was to operate a sandpit and landfill, pay the Weimans a twenty-percent royalty on gross receipts, and maintain the landfill in compliance with federal and state law. In January 1989 after the lease had expired, Addicks-Fairbanks wrote to Mrs. Weiman, now a widow, seeking a long-term commitment for use of the land. Addicks-Fairbanks informed Weiman that it would continue to comply with federal environmental laws and state health regulations, but would be unable to pay royalties because of an unfavorable business climate. Pending further negotiations the company continued to operate the sandpit and landfill and paid no further royalties.
In April 1990, Addicks-Fairbanks was still on the land, and Weiman filed suit for trespass, conversion, and waste {"Weiman I"). In May 1990, Weiman contracted with a third party to sell land adjoining the sandpit and landfill tract. The contract of sale called for excavation deed restrictions which Addicks-Fairbanks claimed would make it impossible to properly maintain or close the landfill. Addicks-Fairbanks Road and Sand Company (but not the Martinis) counterclaimed in Weiman I for a declaratory judgment seeking primarily a determination of its rights under the January 1984 lease, its right of ingress/egress, and the validity of the excavation deed restrictions as bearing on its right to operate the sandpit and landfill and its duty to maintain the landfill in compliance with federal and state law.
Weiman non-suited her claims of trespass, conversion, and waste, but Addicks-Fairbanks proceeded to a non-jury trial on its counterclaims. On December 17, 1990, the court issued a declaratory judgment. The court found that the January 1984 lease had expired and Addicks-Fairbanks was not a holdover tenant, declared the excavation deed restrictions valid, and granted Weiman a non-suit on her original claims. On December 28, 1990, Addicks-Fairbanks formally vacated the land, but did not close the landfill and has not performed post-closure maintenance.
On December 31, 1990, Weiman again sued Addicks-Fairbanks for trespass, conversion, and waste ("Weiman II"). Weiman later amended her pleading to add a cause of action for failure to close the landfill and to request injunctive relief to compel Addicks-Fairbanks to transfer its operating permit to Weiman. Addicks-Fairbanks moved for summary judgment on the affirmative defenses of res judicata, collateral estoppel, and the compulsory counterclaim rule, arguing that Weiman's claims in Weiman II were actually litigated or should have been litigated in Weiman I. The trial court granted the motion.
*417 In point of error two, Weiman argues that Addicks-Fairbanks' motion for summary judgment must fail as to her claims against Addicks-Fairbanks for failure to close the landfill and refusal to transfer its operating permit because the motion does not specifically address these causes of action. In May 1991, Addicks-Fairbanks filed its motion for summary judgment. In early September 1991, Weiman amended her pleadings to add a cause of action concerning Addicks-Fairbanks' failure to close the landfill when it vacated the land. She also requested injunctive relief to compel Addicks-Fairbanks to transfer its operating permit to her. In late September 1991, the court granted the motion for summary judgment, dismissing all of Weiman's causes of action. Weiman complains that Addicks-Fairbanks did not amend or supplement its motion for summary judgment to address the added cause of action or her request for injunctive relief.
Weiman relies on Chessher v. Southwestem Bell Telephone Co., 658 S.W.2d 563 (Tex.1983), which stands for the proposition that a court cannot grant a judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. Id. at 564; Tex.R.Civ.P. 166a(c); however, Chessher is distinguishable from the case at bar. In Chessher the plaintiff brought claims of breach of contract, wrongful discharge, fraud, and misrepresentation claims against defendant. Defendant moved for summary judgment based solely on a statute of frauds defense applicable only to the breach of contract claim. The motion failed to address plaintiff's tort claims. Id. Here, Addicks-Fairbanks relies on res judicata, collateral estoppel, and compulsory counterclaim defenses arguably applicable to all of Weiman's claims. Cf. Weaver v. Stewart, 825 S.W.2d 183, 185 (Tex.App.Houston [14th Dist.] 1992, writ denied) (reversing a summary judgment when the movant specifically stated that his motion was directed to only one of several causes of action and the motion and response dealt exclusively with that one issue).
While Addicks-Fairbanks' motion does not specifically address Weiman's added claims, the claims were before the court in the summary judgment proceeding because: (1) Weiman's amended pleading containing the added causes of action was attached to her response to the motion for summary judgment as an exhibit; (2) Addicks-Fairbanks' Weiman I counterclaim pleading, alleging that the excavation deed restrictions prevented proper landfill closure, was an exhibit to the summary judgment motion; and (3) deposition testimony of Weiman and her attorney from Weiman I, addressing Addicks-Fairbanks' responsibility to maintain and close the landfill or transfer the landfill permit to Weiman, was an exhibit to Addicks-Fairbanks' motion.
Therefore, the trial court had before it all of Weiman's causes of action; Addicks-Fairbanks' res judicata, collateral estoppel, and compulsory counterclaim defenses arguably applicable to all of Weiman's claims; and summary judgment proof bearing on the issue of Addicks-Fairbanks' failure to close the landfill. We overrule point two.
In point of error one, Weiman maintains that there are genuine issues of material fact precluding summary judgment. In our review, we apply the following criteria: (1) The movant for summary judgment has the burden to show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law; (2) In deciding if there are unresolved issues of material fact that preclude summary judgment, evidence favorable to the nonmovant is taken as true; and (3) Every reasonable factual inference favorable to the non-movant is accepted and any doubts resolved in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Addicks-Fairbanks based its motion for summary judgment on the affirmative defenses of res judicata, collateral estoppel, and compulsory counterclaim. The judgment did not specify which type of claim or issue preclusion was the basis of the judgment. We will, therefore, uphold the judgment on any one of those theories that is supported by the summary judgment proof. Wavell *418 v. Roberts, 818 S.W.2d 462, 464 (Tex. App.Corpus Christi 1991, writ denied).
The res judicata principle of merger prevents a successful plaintiff in a prior suit from enforcing rights established by the prior judgment in a new suit rather than in an action brought on the judgment. In other words all claims related to the subject matter of the original cause of action are merged into the judgment and the cause of action is extinguished. Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985). The res judicata principle of bar precludes an unsuccessful plaintiff from relitigating not only any matter that was actually offered and received to sustain or defeat a claim or demand, but also any other admissible matter which might have been offered for the purpose under the exercise of due diligence. See Id.; see also 2 Roy W. Mc-Donald, Texas Civil Practice in District and County Courts § 7.43 (rev. 1982). In essence res judicata, or claim preclusion, gives a plaintiff one bite at the cause of action apple. Collateral estoppel, or issue preclusion, precludes the relitigation of fact issues that were fully and finally litigated and essential to the judgment reached in a prior action. Jeanes, 688 S.W.2d at 106.
To the res judicata/collateral estoppel scheme, we must overlay the compulsory counterclaim rule. Tex.R.Civ.P. 97(a). Six elements define a compulsory counterclaim. A claim for affirmative relief must (1) arise from the same transaction or occurrence as gave rise to the main cause of action, (2) be mature and owned by the counterclaimant, (3) be against an opposing party in the same capacity, (4) not require third parties who cannot be brought into the suit, (5) be within the court's jurisdiction, and (6) not be pending elsewhere. Id. If a claim is brought against a party, and that party shows that the claim was a compulsory counterclaim against him in a prior suit between the parties, the claim is precluded.
Res judicata, collateral estoppel, and compulsory counterclaim principles create several mechanisms whereby a Weiman claim in Weiman II would be precluded by the Weiman I action. First, the res judicata principle of merger would preclude Weiman from renewing as a Weiman II cause of action a claim that was essentially the same cause of action as in Weiman I. Merger is inapplicable here, since Weiman non-suited all of her causes of action in Weiman I. Second, the res judicata principle of bar would preclude an unsuccessful plaintiff in Weiman I from relitigating in Weiman II any claim or defense related to the subject matter of Weiman I that was or should have been litigated there with the exercise of due diligence. The declaratory judgment in Weiman I (1) found that the January 1984 lease had expired on its own terms and that Addicks-Fairbanks was not a holdover tenant, (2) declared that the excavation deed restrictions were valid, (3) denied Addicks-Fairbanks ingress/egress, and (4) declared that Addicks-Fairbanks take nothing. The subject matter of Weiman I was Addicks-Fairbanks' counterclaim, and Addicks-Fairbanks was the unsuccessful plaintiff, not Weiman. Addicks-Fairbanks lost its counterclaim and the bar principle would be applicable against it, not Weiman. Third, collateral estoppel would preclude in Weiman II a Weiman claim that depended on a fact issue that was fully and finally litigated in Weiman I and was essential to the judgment reached there. But the judgment in Weiman I was unfavorable to Addicks-Fairbanks, and it is impossible for Addicks-Fairbanks to show that there were fact issues adjudicated favorably to it that were essential to an unfavorable judgment.
By elimination, the compulsory counterclaim rule is the only means by which Addicks-Fairbanks could prevent Weiman from bringing her Weiman II claims. Compulsory counterclaims are appropriate in declaratory judgment actions when the Rule 97(a) requirements are met. Greater Houston Bank v. Conte, 666 S.W.2d 296, 299 (Tex.App.Houston [14th Dist.] 1984, no writ); 1 McDonald, Texas Civil Practice § 2.06 (rev.1991). Weiman's claims in Weiman II are precluded if they were compulsory counterclaims to Addicks-Fairbanks' counterclaims in Weiman I.
*419 When a defendant moves for summary judgment on the basis of an affirmative defense, the defendant must present and prove conclusively all essential elements of its defense as a matter of law. Smiley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Here. Addicks-Fairbanks must prove all the elements of the compulsory counterclaim rule. Tex.R.Civ.P. 97(a). Only three of the elements are contested on appeal, namely, that a compulsory counterclaim must (1) arise from the same transaction or occurrence as gave rise to the main cause of action, (2) be mature and owned by the counterclaimant, and (3) be against an opposing party in the same capacity. See Id.
First, Weiman argues that her Weiman II causes of action did not arise out of the same transaction or occurrence as did Addicks-Fairbanks' Weiman I counterclaims. We disagree. The Texas Supreme Court recently drew a parallel between the transactional approach embodied in the compulsory counterclaim rule and the approach to be used when applying basic res judicata principles:
A "transaction" ... determination is to be made pragmatically, `giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties' expectations or business understanding or usage.'
Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.1992), quoting Restatement (Second) of Judgments § 24(2) (1982).
Weiman would have us apply the "elements of proof" test used in Astro Sign Co. v. Sullivan, 518 S.W.2d 420 (Tex.App.Corpus Christi 1974, writ ref'd n.r.e.), but Barr disapproved of this approach saying:
Every theory of recovery has its unique elements of proof. [Ojnly slight variations of the facts to support different theories of the same incident can result in a court finding different causes of action, thus thwarting the purposes of res judicata.
Barr, 837 S.W.2d at 630.
Addicks-Fairbanks offered the following summary judgment proof: (1) Weiman's original Weiman II pleading (Weiman's response included her latest Weiman II amended pleading), (2) Weiman's live Weiman I pleading, (3) Addicks-Fairbanks' penultimate Weiman I counterclaim pleading (Weiman's response included the latest Addicks-Fairbanks amended counterclaim pleading), (4) the Weiman I judgment, (5) Weiman I deposition testimony by Weiman and her attorney, and (6) affidavits by the Martinis and their current and former attorneys.
We find that the summary judgment proof shows that the same factual circumstances gave rise to both Addicks-Fairbanks' Weiman I counterclaims and Weiman's Weiman II claims. These undisputed core facts consist of Addicks-Fairbanks' continued occupation of Weiman's land after the lease had expired, continued operation of the sandpit and landfill, and failure to pay royalties to Weiman. These core facts gave rise to Addicks-Fairbanks' Weiman I counterclaim for a declaration of (1) its rights pursuant to the lease, (2) its rights and liabilities regarding the tract of land leased from Weiman and excavation deed restrictions depriving it of use of the land, and (3) its rights of ingress/egress to the land. These same facts also gave rise to Weiman's Weiman II claims for (1) trespass by Addicks-Fairbanks in remaining on the sandpit/landfill tract after expiration of the lease, (2) conversion of the gross receipts from the landfill and sandpit operation, (3) trespass, conversion and waste involving adjoining land, and (4) failure to close the landfill and her request for injunctive relief. Here, the pragmatic Barr standard is readily met. The combination of these competing claims would have formed a convenient trial unit in Weiman I. This combination would have been consistent with the parties achieving a comprehensive conclusion to their business relationship and resolving all lingering issues connected with the expired lease.
*420 Second, Weiman argues that her Weiman II claims were not mature at the time of Weiman I. We disagree in regard to the claims for trespass, conversion, and waste, but agree as to her claim for failure to close the landfill and request for injunctive relief. At the time of the Weiman I trial, Addicks-Fairbanks had been on Weiman's land for almost two years after the expiration of the January 1984 lease, had been operating the sandpit and landfill, and had not paid her any royalties. Weiman's non-suited claims in Weiman I, which were almost identical to her Weiman II claims, indicate that she was aware of the existence of the acts and circumstances constituting trespass, conversion, and waste causes of action against Addicks-Fairbanks. This awareness is further indicated by the Weiman I deposition testimony by Weiman and her attorney.
Weiman's complaint against Addicks-Fairbanks for failure to close the landfill and refusal to transfer its operating permit to Weiman is another matter. Weiman argues that these causes of action were not mature at the time of Weiman I because Addicks-Fairbanks had not yet unequivocally vacated the land. We agree. Under a term in the lease, Addicks-Fairbanks owed a duty to Weiman to obtain an operating permit for the landfill and abide by federal environmental and state health laws. State law requires an operator abandoning a landfill to close it and perform post-closure maintenance for at lease five years. Tex.Admin.Code §§ 325.152 & 325.153. Addicks-Fairbanks did not provide Weiman with notice of its intent not to close or maintain the landfill until after the Weiman I declaratory judgment.
Weiman I declared that the January 1984 lease had expired, not that it was void. Addicks-Fairbanks' responsibilities under the lease for closure and post-closure maintenance of the landfill were not extinguished. Aspects of the Weiman I judgment regarding excavation deed restrictions and access to the land, while affecting Addicks-Fairbanks' ability to perform the closure and maintenance through its own operations, do not necessarily relieve Addicks-Fairbanks of liability for the accomplishment of those functions.
We find that Weiman's claims for Addicks-Fairbanks' failure to close the landfill and refusal to transfer its operating permit to Weiman were not mature at the time of Weiman I and are not barred by the compulsory counterclaim rule from being brought in Weiman II.
Third, Weiman argues that her Weiman II claims should not be barred, at least as to the Martinis, because the counterclaim in Weiman I was brought only by Addicks-Fairbanks Road Sand Company and not by the Martinis. She correctly maintains that the compulsory counterclaim rule requires an identity between the parties of the first and second suits. However, the Weiman I judgment included the Martinis as counterclaimants, and Weiman approved the judgment as to form and took no appeal.
The three compulsory counterclaim elements challenged on appeal involve law questions, i.e., the determination (1) whether Weiman's Weiman II claims arose from the same transaction or occurrence as the Addicks-Fairbanks' Weiman I counterclaims, (2) whether Weiman's Weiman II claims were mature at the time of Weiman I, and (3) whether the parties in Weiman I and Weiman II were identical. With the exception of trial court's maturity determination regarding Weiman's claims relating to the failure to close the landfill, we find that these law questions were correctly decided by the trial court based on the summary judgment evidence at hand.
More generally, Weiman argues that her Weiman II claims lie in tort and cannot be counterclaims to the Addicks-Fairbanks' Weiman I counterclaims which, she maintains, lie in contract. However, she bases her position on a misinterpretation of Tex. R.Civ.P. 97(g). The rule states that tort may not be the subject of setoff or counterclaim against a contractual demand, nor a contractual demand against tort, unless it arises out of, is incident to, or is connected with the opposing claim. Tex.R.Civ.P. 97(g). She maintains that the effect of Rule 97(g) is that a tort claim that does arise out of the opposing claim would be *421 permissive. We disagree. "Rule 97(g) has application only to permissive counterclaims, since compulsory counterclaims by definition must arise from the transaction or occurrence which is the subject matter of the plaintiff's claim." See, e.g., Texas Nat'l Bank of Victoria v. Lewis, 793 S.W.2d 83 (Tex.App.Corpus Christi 1990, no writ); 2 McDonald, Texas Civil Practice § 7.50 (rev.1982).
Weiman further contends that her Weiman II claims for trespass, conversion, and waste should not be precluded because she was granted a non-suit without prejudice in Weiman I. However, the granting of a non-suit without prejudice before a plaintiff rests his case is a purely ministerial act, the non-suit being effective when the plaintiff files his motion for dismissal. Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex.1990). A party is not barred from litigating claims in a subsequent suit merely because he voluntarily withdrew those claims from an earlier suit, unless the withdrawal was with prejudice. However, such claims are still subject to the rules of procedure. Here, the compulsory counterclaim rule bars these Weiman II claims. See Tex.R.Civ.P. 97(a).
Weiman asserts that her rebuttal proof raises material issues of fact. Weiman's response to the motion for summary judgment included as summary judgment proof (1) Weiman's live Weiman I pleading, (2) Addicks-Fairbanks live Weiman I counterclaim, (3) the Weiman I final judgment, and (4) Weiman's Weiman II live pleading. Two affidavits were also included. In an affidavit by Weiman's attorney, he states that he inspected the land on December 24, 1991, and that Addicks-Fairbanks had removed all of its heavy equipment. In the one other affidavit, an expert on solid waste management law stated that Addicks-Fairbanks had a duty under state law to close the landfill and that Addicks-Fairbanks had not done so.
We find that none of this rebuttal proof raises a genuine issue of material fact that would deny Addicks-Fairbanks its summary judgment on Weiman's claims for trespass, conversion, and waste. Two of the pleadings provided by Weiman in her response were more current versions than those included in Addicks-Fairbanks' motion; however, the parties do not contest which pleadings were live. We have already held that the compulsory counterclaim rule does not apply to Weiman's claims related to closure of the landfill.
In sum, we find that there were no genuine issues of material fact and that Addicks-Fairbanks established its affirmative defense of compulsory counterclaim as a matter of law against Weiman's claims of trespass, conversion, and waste. However, the trial court erred in denying Weiman a trial on the merits on her claim against Addicks-Fairbanks for failure to close the landfill and refusal to transfer its operating permit to her. We sustain point one in part.
We affirm the judgment below granting Addicks-Fairbanks' summary judgment on Weiman's claims for trespass, conversion, and waste. We reverse the judgment as to Weiman's claims against Addicks-Fairbanks for failure to close the landfill and refusal to transfer its operating permit. The latter causes are remanded for further action consistent with this opinion.
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Mr. Chief Justice Green
delivered the opinion of the Court.
This suit was brought in the name of the state of Tennessee, by Hon. Ridley Mitchell, the district attorney general, on the relation of five citizens of Wilson county, against the Lebanon & Nashville Turnpike Company, a corporation organized under the laws of this State.
The original bill, on account of various matters stated therein, sought a forfeiture of the charter of the defendant company, and, in the event that relief was denied, asked that the defendant be restrained from maintaining more than three toll gates on the turnpike now operated by it, prayed that the defendant be required to close and abolish its fourth toll gate going west from Lebanon, and prayed for other relief not necessary to be noticed now. An amended bill was subsequently filed, bringing forward some new matters.
Both bills were answered by the defendant and proof taken. Prior to the hearing before the chancellor, a number of questions were eliminated by consent of parties. The remaining questions were disposed of by the chancellor, sitting also as a jury, and he decreed among other things that the defendant did not have the right to maintain the fourth toll gate from Lebanon as now located.
*154A motion for a new trial and a motion in arrest of judgment were respectively made and overruled, and the defendant appealed to this court.
The only question brought up on this appeal, except a question of procedure, is the right of the defendant company to keep its fourth toll- gate from Lebanon as now located, or its right to keep four toll gates on the turnpike it now owns.
The preliminary question of procedure above referred to arises upon the defendant’s insistence that the rela-tors upon whose information this suit was brought are precluded by former judgments against them from appearing as relators herein.
It seems that the most of these relators have had previous litigation with the defendant company over the right of the defendant to exact tolls from them for travel over this turnpike. In these several suits one or more of the questions herein presented were made by these gentlemen ; they then being defendants! These suits appear to have resulted favorably for the turnpike company.- It is therefore urged that these questions are res adjtidicata as to these parties, and that they are thereby estopped to come in, even as relators, and undertake to litigate such questions again.
This argument is not well founded. These parties do not appear in the same capacity in this suit in which they appeared in the suits brought against them by the turnpike company. In this case they are relators in a suit of the State of Tennessee. In the other cases they were individual defendants in suits brought by the lurnpike company.
*155In order that a judgment may operate as res adjucli-cata, it is essential that the parties sought to be concluded should have sued or been sued in both cases in the same capacity or character and to enforce the same right. Harris v. Columbia Water, etc., Co., 114 Tenn., 328, 85 S. W., 897; Memphis City Bank v. Smith, 110 Tenn., 337, 75 S. W., 1065; Melton v. Pace, 103 Tenn., 484, 53 S. W., 939.
This is not the suit of individuals. It seeks relief not to be attained by individuals, but only by the sovereign. This suit was brought upon consent of the district attorney general, indicated by his signature to the original bill. It is a suit for the benefit of the whole people, not for the benefit of the relators. It can only be brought by authority of some representative of the state. Thompson’s-Shann on’s Code, section 5165 et seq.
It is a mistake to say that — “such a proceeding is in any sense a private suit. It is not so in the beginning, nor in the progress of the case does it ever become such. It remains as it began, the suit of the government; the relators, however, upon whose information it is instituted on their complaint, being liable for the cost." State ex rel. v. Turnpike Co., 112 Tenn., 615, 79 S. W., 798.
To the same effect see State ex rel. v. White’s Creek Turnpike Co., 3 Tenn. Ch., 163; State v. McConnell, 3 Lea, 332; State ex rel. v. Agee, 105 Tenn., 588, 59 S. W., 340.
New Hampshire v. Louisiana, 108 U. S., 76, 2 S. Ct., 176, 27 L. Ed., 656, is not in point. "While that was a suit in the name of a State, it was prosecuted purely for the benefit of a private individual. The court merely *156refused to countenance a subterfuge by which an individual sought to sue a sovereign state.
The defendant, the Lebanon & Nashville Turnpike Company, was chartered by chapter 15 of the Local Acts of 1835-36. The original charter contained the following provisions:
“And when the said road shall be thus finished for the distance of seven miles from Nashville or Lebanon, the president may apply to the Governor, who shall appoint three discreet and disinterested persons •' to view said road, and on the report of any two of them, that the road has been completed for the distance aforesaid, in the manner prescribed by this act, it shall be the duty of the Governor to issue his certificate under the seal of the State, authorizing the company to erect two toll gates, one not nearer than one mile of the limits of the corporation of Nashville or Lebanon, and the other not nearer than within five miles of the first, and to appoint a toll gatherer for each gate. . . .
“And so soon as said road shall be completed five miles from the second gate as herein directed, a similar application shall be made to the Governor, and the same proceedings had as before directed; and so on for every five miles until said road shall be completed-: Provided, there shall not be more than six gates between Nashville and Lebanon; provided, also, that no gate shall be set up until all the road is under contract, or one hundred thousand dollars of the stock actually taken.”
Defendant’s charter was amended by chapter 200' of the Acts of 1847-48, which contained, among other things, the following provision:
*157“That the directors of said company may remove and change the location of the gates on said road, by the action of the board, as they may think proper from time to time: Provided, 1st, that no gate shall be placed nearer than three miles to another; and 2nd, that the gates shall not be so located that the travel upon the Stewart’s Ferry arm will have to pay at more than two gates to Nashville, and if a gate should be placed on the said arm, it shall not be more than one hundred feet from its junction, nor shall the travel upon said arm, which may turn upon the east end of the main road pay at the first gate on the same, nor shall the travel on the main road from the east, which may turn upon the said arm pay upon the same. There shall never be but two gates from the point of intersection of the said arm and the main road to the city of Nashville, nor shall there be any gate on the said arm, except as herein provided.”
Chapter 49 of the Acts of 1849-50 undertook to repeal chapter 200 of the Acts of 1847-48 authorizing defendant to change the location of its gates. But the Act of 1849-50 has been heretofore held unconstitutional, and need not be further mentioned. State ex rel. v. Lebanon & Nashville Turnpike Co., (Tenn. Ch. App.), 61 S. W., 1096, affirmed orally by this court.
Prior to 1902 the defendant company maintained three toll gates in Davidson county and three toll gates in Wilson'county. In 1902, it sold that portion of its turnpike located in Davidson county to that county. Just prior to the sale, and evidently in contemplation thereof, the defendant moved the fourth gate from Lebanon and the third gate from Nashville, which had always be*158fore been located in Davidson county, across tlie line into Wilson county.
The proof shows that the length of the turnpike originally was thirty miles. Since the sale of that portion lying in Davidson county, the defendant has remaining sixteen and one-third miles of turnpike in Wilson county, upon which it keeps four gates.
The defendant justifies the four gates under. the amendment to its charter (chapter 200 of the Acts of 1847-48), heretofore quoted, permitting it to change the location of its gates as it may think proper, provided that no gate shall be placed nearer than three miles to another. Going out of Lebanon from the first gate to the second gate is four and two-fifths miles; from the second gate to the third gate is five and three-fifths miles; and from the third gate to the fourth gate is four and three-sixteenths miles.
This contention, while plausible, cannot be maintained.
The general rule is that a corporation charged with the performance of public duties or possessing powers which are given in return for some public good cannot dispossess itself of those franchises, or of that property necessary to enable it to discharge those duties. 2 Morawetz, Private Corporations, sections 924 et seq., 930, 934; 4 Thompson on Corporations, sections 5355, 5373, 5374; State v. Butler, 15 Lea, 104. This rule applies to turnpike corporations. 38 Cyc. 384, and cases cited.
By chapter 198 of the Acts of 1887 (Thompson’s-Shannon’s Code, section 2043), public service corporations were permitted to lease and dispose of their property *159and franchises to other corporations engaged in or carrying on the same general business; this legislation being applicable to glossi-public corporations only. Knapp v. Golden Cross, 121 Tenn., 212, 118 S. W., 390. We have other legislation to the same effect which need not be noticed.
Such statutes as the foregoing, of course, did not confer on- the defendant company any right to sell half of its property and its franchises to Davidson county, nor did they confer on Dayidson county any authority to make such a purchase.
By chapter 118 of the Acts of 1881 authority was given to turnpike companies, chartered by the laws of this State, to convey their property and franchises to the county courts of the counties in which said property lay. By chapter 196 of the Acts of 1899 the county courts of such counties were given authority to pay for such turnpike properties by the issuance of county warrants, or otherwise, except by bonds.
These provisions of chapter 118 of the .Acts of 1881 and chapter 196 of the Acts of 1899 are thus codified in Thompson’s-Shannon’s Code, section 1796:
“Any turnpike road company heretofore or hereafter chartered by the laws of this State shall have the right to convey its roadbed, bridges, tollhouses, rights of way, franchises, etc., to the county court of the county in which said roadbed lies. And the county court may pay for the same by county warrants, or otherwise except by bonds, and any turnpike company may sell and dispose of any part of its roadbed and interests to the county court of the county in which the same may lie, without *160in any way forfeiting or affecting its charter rights, roadbed, bridges, tollhouses, rights of way, franchises, etc., in the remaining portion which it may not have disposed of; provided, that nothing in this act shall be so construed as to allow any turnpike company to operate a greater number of gates to its mileage than is now authorized by law.”
It therefore seems that the defendant company was not entitled to sell its property and franchises in Davidson county to that county, except upon the terms stated in the section of the Code just quoted.
Whatever may have been the rights of defendant company, however, it is entirely certain that Davidson county had no authority to undertake this purchase, except upon the terms provided in the statutes.
“ ‘Counties owe their creation to the statutes, and the statutes, confer on them all the powers which they possess, prescribe all the duties they owe, and impress all the liabilities to which-they are subject.’ . : .
“It has been tersely said ‘the limits of all powers of counties, except those necessarily implied, must be found within the four corners of the statutory provision made by the legislature.’ 4 Am. & Eng. Enc. L., 389.” Burnett v. Maloney, 97 Tenn., 697, 37 S. W., 689, 34 L. R. A, 541.
One dealing with a municipality is bound at his peril to take notice of the limitations of its authority. Kreis & Co. v. City of Knoxville, 145 Tenn., 297, 237 S. W., 55.
So, regardless of its own power, when the defendant company undertook to deal with Davidson county, it *161had to contract with that county on the terms prescribed by the legislature.
It follows, therefore, that when the contract for the sale of its Davidson county property and franchises was made between defendant and Davidson county, there entered into this contract the denial, contained in chapter 196 of the Acts of 1899, of authority, after the sale, to this turnpike company, “to operate a greater number of gates to its mileage than is now authorized by law.”
By its original charter, which was in this respect never amended, the defendant company was restricted to the maintenance of six toll gates between Nashville and Lebanon. The distance was thirty miles. While by amendment of 1847-48 the defendant company was permitted to change the location of its gates, so long as no two were brought nearer together than three miles, the mini ber of gates permitted on the whole road was never changed.
Six gates to thirty miles. That is an average of one gate to five miles. When the mileage was reduced, under the act quoted the gates had to be reduced in proportion.
The mileage of defendant company has now been reduced to sixteen and one-third miles. Upon its present mileage it can only be allowed to maintain three gates. A greater number of toll gates on this mileage would be “a greater number of gates to its mileage than is now authorized by law” in direct contravention of the provisions of the statute quoted.
As we understand the decree of the chancellor, he directed the removal of the fourth gate from Lebanon. We think it is immaterial which of its gates the de*162fendant company removes. It is only entitled to maintain three gates. It can locate them as it chooses so long as no two of them are nearer to each other than three miles, and so long as the first one does not approach the corporate limits of Lebanon nearer than one mile.
Thus modified, the decree of the chancellor will be affirmed., The defendant will pay the cost of this court, and the costs below will remain as taxed by the chancellor.
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846 S.W.2d 777 (1993)
DAVID COOPER, INC., d/b/a Town and Country Supermarket, Plaintiff-Respondent,
v.
CONTEMPORARY COMPUTER SYSTEMS, INC., Defendant-Appellant.
No. 17939.
Missouri Court of Appeals, Southern District, Division Two.
February 5, 1993.
*778 Dwight Douglas, Douglas, Douglas, Johnson & Wood, Neosho, for plaintiff-respondent.
Alan B. Gallas, Gallas & Schultz, Kansas City, for defendant-appellant.
PREWITT, Judge.
This action was brought to recover the purchase price of computer software. Following a nonjury trial judgment was entered in favor of plaintiff. Defendant appeals.
Review is under Rule 73.01(c). As that rule is interpreted, this court is to affirm the trial court's determination, unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990).
Due regard is given to the trial court's determination of the credibility of witnesses. Rule 73.01(c)(2). "The trial judge is in a better position than this court to determine the credibility of the parties, their sincerity, character and other trial intangibles which may not be shown by the record." Kelley v. Prock, 825 S.W.2d 896, 897 (Mo.App.1992). No findings of fact were requested or made. All facts therefore are considered as having been found in accordance with the result reached. Rule 73.01(a)(2).
Respondent operates a supermarket in Anderson, Missouri. The parties contracted regarding respondent purchasing accounting software for the supermarket. After preliminary negotiations a contract was entered into in February 1988. The software purchased had not previously been used with the type of operating system that respondent had, other than in tests at appellant's office. However, appellant's agents assured respondent of the compatability of the two systems. The contract for sale included a "Special Amendment" which read:
"If within ninety days (90) of installation date, Contemporary Computer Systems, Inc.'s, Systems are not functioning as represented, then buyer may return systems to Contemporary Computer Systems, Inc., at no expense."
Installation of the system was completed April 1, 1988. The president of respondent testified that April through June 1988 he made several complaints by telephone to appellant regarding the system. In June 1988 appellant's president called respondent's president requesting payment. Respondent's president testified he questioned *779 the workings of the system saying there were "problems" and he was not "satisfied" with it. He testified he was assured by appellant's president that all problems would be worked out and was asked to tender the amount due. Respondent paid appellant $10,338.36. Appellant's president denied that any reports of problems with the system were made.
On July 20, 1988 respondent sent a letter to appellant stating that the system was not working as anticipated and requested a refund of the amount paid. Appellant refused to pay the money and this suit was filed. The trial court found in favor of respondent and entered judgment against appellant for $10,338.36.
The parties agree that the case was tried under the assumption that the Uniform Commercial Code is applicable and both urge this court to follow it on appeal. As that was the position of the parties in the trial court, that will be the assumption of this court, without deciding whether the Uniform Commercial Code should be applicable.
An appellate court reviews a case only upon the theory tried and a party will be held to that theory on appeal. In re Marriage of Hunter, 614 S.W.2d 277, 278 (Mo.App.1981). "On appeal a party is bound by the position he took in the circuit court." Id.
Appellant contends that the election to rescind was invalid because it was not made within 90 days as set out in the special amendment. Respondent counters that the 90-day provision was not an exclusive remedy. It further argues that even if it was an exclusive remedy, the time was extended due to assurances made by appellant's president.
Section 400.2-719, RSMo 1986, a part of Missouri's version of the Uniform Commercial Code states in part:
(1) Subject to the provisions of subsections (2) and (3) of this section and of section 400.2-718 on liquidation and limitation of damages,
(a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and
(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
As the 90-day provision does not expressly make it the only remedy, it is not exclusive and respondent had a reasonable time to reject the system. See Triad Systems Corp. v. Alsip, 880 F.2d 247 (10th Cir.1989); Polycon Industries, Inc. v. Hercules Inc., 471 F. Supp. 1316 (E.D.Wis. 1979); Hollingsworth v. The Software House, Inc., 32 Ohio App. 3d 61, 513 N.E.2d 1372 (1986).
"Absent a specific provision in the contract, the buyer has a reasonable time within which to determine whether or not the goods are defective and such reasonable time depends upon all of the circumstances surrounding the transaction." Stephens Industries, Inc. v. American Express Co., 471 S.W.2d 501, 504 (Mo.App.1971).
"The actions of the parties may affect what constitutes a reasonable time. Thus, where the buyer complains about defects in the goods and the seller persuades him to keep the goods while the seller attempts to remedy the defects, the reasonable time within which to rescind the contract is extended by such persuasion of the seller." Id.
In the present case there was evidence of numerous complaints and assurances by the appellant's president that those problems would be corrected. The evidence of respondent was that the problems were never corrected. The trial court could find that respondent acted within a reasonable time to reject the system and under its limited review, this court cannot say that the trial court erred in making that determination.
Appellant also contends that there was no substantial evidence that appellant breached the express warranty made regarding the software. Respondent's president testified at length, without objection, *780 of numerous problems present when the software was installed which were never corrected.
An employee working in the "capacity" of "bookkeeping, accounting" testified that she had been using computers during her six years on the job. She had no knowledge of computers other than what she had learned while working for respondent. She testified without objection to numerous uncorrected problems with the software.
Appellant emphasizes that there was no expert testimony and no proof that the software would not perform in accordance with appellant's "documentation". That "documentation" was referred to in the agreement between the parties and was apparently included within an exhibit before the trial court. That exhibit was not filed with this court. It is therefore "considered by the court as immaterial to the issues on appeal." Rule 81.15.
The intendment and content of an exhibit, not filed with an appellate court, will be taken as favorable to the trial court's ruling. Fidelity and Cas. Co. of New York v. Wrather, 652 S.W.2d 245, 251 (Mo.App.1983).
If expert testimony was necessary, the witnesses who testified for respondent may have qualified as "experts" due to their experience. However, no objection to their testimony was made. They testified to numerous problems with the systems which justified the trial court's conclusion.
Appellant has not demonstrated that the trial court's determination was not supported by substantial evidence, was against the weight of the evidence or erroneously declared or applied the law. Therefore, its ruling is not to be disturbed.
The judgment is affirmed.
MONTGOMERY, P.J., and FLANIGAN, J., concur.
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416 Pa. 118 (1964)
Felt, Appellant,
v.
Hope.
Supreme Court of Pennsylvania.
Argued October 1, 1964.
December 3, 1964.
Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Benjamin A. Katz, for appellant.
D. Arthur Magaziner, with him Mancill, Sterling, Magaziner, Semans and Hedges, for appellee.
OPINION BY MR. JUSTICE O'BRIEN, December 3, 1964:
Appellant commenced an action in equity seeking, inter alia, to enjoin appellee from conducting a real estate business in Philadelphia and for an accounting to establish damages allegedly sustained by appellant.
*119 The action is predicated on a sale by appellee to appellant of a real estate business formerly conducted by appellee. The sale was consummated in July of 1960 and its terms were embodied in the following writing: "Dear Sir: I propose to sell you the furniture, fixtures and good will and equipment of my real estate business located at 5913 N. Broad Street, Philadelphia, not including cash, accounts receivable, automobile, animal heads on walls, for the price of five thousand dollars ($5,000.00) to be paid as follows: $1,000.00 to be paid at the time of acceptance of this agreement, and the balance of $4,000.00 at settlement within 30 days thereafter.
"All sales and pending transactions up to date of closing shall be my property and responsibility.
"I shall be permitted to remain with the office as a broker, devoting such time as I see fit and pay to the office one half of the proceeds of any business which I may produce as long as I am connected with your office. All insurance in the office shall remain my property. However, when you secure your insurance license, all new insurance from that date on shall be considered your property.
"I am permitted to remove animal heads and my personal belongings any time I see fit.
HERBERT HOPE
"I have read the above and agree to purchase the real estate business on the terms stated.
CECIL M. FELT".
The parties continued the association contemplated by the sales agreement until August of 1962, at which time a dispute arose as to rights in a telephone listing and appellant insisted that appellee either turn over the listing to appellant or leave. Appellee did leave, taking with him the items he was entitled to under the agreement and established his own real estate office near by, thereby giving rise to this litigation.
*120 The chancellor made findings of fact and conclusions of law and entered a decree nisi, denying the relief prayed for in the complaint. Appellant's exceptions were dismissed by the court en banc, and the decree nisi was made final; this appeal followed.
The conclusion reached by the court below is well summarized in the opinion, as follows: "Plaintiff is not entitled to injunctive relief restraining Defendant from conducting a real estate business because: (1) the agreement between these parties in no way restricts his (defendant's) right thereto; (2) the testimony establishes no omission of such restriction from the agreement by any fraud, accident or mistake; (3) contrary to inference that such restriction may have been intended are the very words of the agreement, viz.: `I shall be permitted to remain with the office as a broker, devoting such time as I see fit and pay to the office . . . as long as I am connected with your office'; (4) Defendant would have remained `with the office' had the Plaintiff not evicted him and prevented him to `continue to be associated with me'.
"On what, then, does Plaintiff's case rest? The matter resolves itself into the dispute over the right to the Bell Telephone Listing `Livingston 8-0200'. This listing was in the Defendant's name for a long time. But continuously from August 1, 1960 until August 27, 1962, Plaintiff admits the telephone book listing carried both Plaintiff's and Defendant's names under the same telephone, namely, Livingston 8-0200. It is Plaintiff's contention that the agreement provides by the use of the term `good will' that Defendant was required to transfer this listing to Plaintiff.
"Plaintiff testified that he first told the Defendant that the telephone must be turned over to the Plaintiff and put under his control sometime in 1961.
"There was yet another cause of disagreement between the parties: instead of the 50% of commissions *121 which the agreement provided was to be paid to the Plaintiff, Plaintiff thought he was entitled to 75%.
"We did not at trial nor did we at argument sur exceptions conclude that this agreement to sell the items named therein and to associate in business one with another was severed because of a telephone listing. Plaintiff is too versed in the ways of business and too keen an appraiser of values to have deliberately, intentionally completely severed relationship association with the Defendant on such an insignificant reason. It was, however, an excuse as was his unwarranted demand to be entitled to 75% instead of 50% of commissions. These were the excuses which Plaintiff used as a justification unto himself for the termination of the association which he no longer needed for his desired status.
"It is these excuses which Plaintiff's counsel persists in denying but which the Trial Judge found permeating the Plaintiff's action. As the fact finding body, the Trial Judge was unable to conclude, as the Plaintiff contended, that the refusal to have the listing and billing of the telephone service under Herbert Hope changed to the listing and responsibility of Cecil M. Felt was the reason for the termination of the association. Completely aside from the fact that the listing of both parties under the same number was acceded to for a considerable time after the agreement was entered into, we must from the testimony conclude that no value was ascribed to the exclusive listing. If it were of any recognized value as an asset, there probably would have been evidence thereon presented. But there was no loss established and we can now say there could have been none. Note: Neither party has this telephone number . . . .
"Additionally, we find that Plaintiff's testimony was not such as, in quality or quantity, carried his burden of proof by anything approaching a fair preponderance *122 of the evidence. He is not factually entitled to the intervention of equitable process.
"Whatever tack Plaintiff engages in charting his course of argument and some have been specious and spurious, e.g., in claiming the market value of tangible assets involved in the agreement to be $325, but for `accounting' purpose and depreciation allowance for Federal Income Tax purposes claiming the value to be $4000 his hopes of recovery are dashed when his arguments are met with the unavoidable obstacle of his own breach of a contract whose terms he had complied with for a long time when compliance inured to his status, but whose terms he chose to discard when he felt his status no longer needed the contract's support.. . .
"Of course, we agree with the proposition that a sale of good will requires that the seller `should do nothing which directly tends to deprive [purchaser] of its benefits and advantages'.
"But Plaintiff seeks to enjoin Defendant from `carrying on, maintaining or conducting an office for the conduct of a real estate business' in Philadelphia.
"Yet the contract between the Plaintiff and Defendant provides not merely for the sale of good will and furniture, fixtures and equipment of `my real estate business' but it provides also that Defendant `shall be permitted to remain with the office as a broker, devoting such time as I see fit . . .', and insurance shall remain Defendant's, except that from a certain date, only `new insurance' shall be considered Plaintiff's property. Though staunchly and vociferously he refuses to acknowledge it, Plaintiff has not purchased `good will' in the terms of the reported cases. The good will of his purchase did not contemplate the Defendant's separation from the real estate business nor did it contemplate the absence of the competition with Plaintiff; it specifically provided for that competition *123 and continuance in business, from which Plaintiff for years reaped an income on the stipulated 50% basis and from which, in violation of the contract, Plaintiff wanted 75%." (Emphasis in original)
Our review of this record indicates that the chancellor's findings of fact, approved by the court en banc, are more than adequately supported by the evidence, hence they will not be disturbed on this appeal. Shydlinski v. Vogt, 406 Pa. 534, 179 A.2d 240 (1962); Durso v. D'Urso, 409 Pa. 487, 187 A.2d 270 (1963); Izzi v. DiTomo, 413 Pa. 461, 198 A.2d 521 Note 2 (1964). The legal conclusions reached from these facts follow inexorably. In any event, there is certainly not present the clear error which would require a reversal. Izzi v. DiTomo, supra.
Decree affirmed. Appellant to bear costs.
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206 A.2d 786 (1964)
Nancy P. HALL
v.
Alexander HALL.
No. 1977.
Supreme Court of Vermont. Washington.
December 1, 1964.
Rehearing Denied February 2, 1965.
Black & Plante, White River Junction, Frank G. Mahady, on brief, for libellant.
Monti, Paterson, Calhoun, Eldredge & Noble, Montpelier, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY and KEYSER, JJ.
BARNEY, Justice.
The divorce decree in this case, by its terms, continued until "further order of court." At his retirement, the libellee *787 ceased to comply with the support payment provisions, saying that, at the time the order was drawn, the parties had stipulated that the support order would automatically terminate with his employment. The libellant promptly brought a petition for contempt.
At the initial hearing, the libellee requested time to file an answer and a petition for modification. The court granted him thirty days, but ordered that he continue to comply with the support order during that time.
At the next hearing the libellee moved for dismissal of the contempt petition and to amend the original order. Although the court declined to dismiss the petition for contempt, it nevertheless refused, also, to adjudge the libellee guilty of contempt. It also denied the libellee's motion to amend the order. The libellee appealed both rulings here.
The hearing was preoccupied with a dispute centering around an alleged difference between the term of the order governing its continuance, and the term of the written stipulation applying to the same issue. The order of events in 1958, when the order was made, sheds some light on the disagreement.
The then trial court, at the close of the hearing gave an oral statement of its understanding of the oral stipulation then existing between the parties, expressing them as the court stated it intended they should be embodied in a written order. Both parties were present, and, after settling a question of legal fees, indicated their agreement with the terms stated by the court. Counsel were then asked to prepare and file, prior to preparation of the written order, a written stipulation embodying those provisions. This was done.
However, the written stipulation provided for support payments to continue "each month so long as the libellee earns his present salary." It is undisputed that the written court order provided that payments were to continue so long as "his present employment and earning capacity remains the same and that if that changes, it shall be subject to further order of the Court." This exactly reproduced the oral statement of the court.
The libellee finds fault with the order as it varies from the stipulation. But the court entering the decree was not bound by the stipulation in this particular. Although the court may well have been satisfied that support for the libellant might have to be abridged or terminated at the libellee's retirement, this would not, in any way, restrain the court from requiring that the expected change come about only after proceedings which brought the circumstances at that time again under the eye of the court. This leaves the burden of showing a change of circumstances on the party claiming its benefits, as our cases do. Davis v. Davis, 121 Vt. 242, 245, 154 A.2d 463. We must presume that the court intended the order to be as it was drawn, and affirm its authority to so draw it.
From the time the provisions of the order were announced in open court, through the time of acceptance of service of the written order by the libellee, down to the present, the burden was, at all times, on the libellee to present to the court any prayers for changing that order in his behalf. Sand v. Sand, 116 Vt. 70, 72, 69 A.2d 7. He did do this, in response to the petition for contempt, basing his claim on the variation between the written order and the written stipulation. This was not enough. As allegation it was insufficient, and as evidence it was immaterial. In alimony orders, as in custody orders, a petition alleging, and evidence showing, change in circumstance is a prerequisite. Even so, the change alleged and proved may still be insufficient as a ground for modification. McKinney v. Kelley, 120 Vt. 299, 302, 141 A.2d 660. The stipulation suggested a prospective change, but the order left it to the libellee to establish it with evidence.
*788 The findings make it apparent that his evidence did not persuade the lower court in the present proceeding that there had been anything demonstrated amounting to a factual basis for amending the order. Nothing appears in the case on this issue except the bare fact that the libellee had, as expected, been involuntarily retired. Whether his financial situation had altered for better or worse from that when the order was made nowhere appears. There is, literally, no evidence of any change in circumstance relative to the issue of libellant's support, to operate as either a prerequisite to a petition, or grounds for modification. The court's denial of the petition to amend was proper, because to amend on the state of this case would have been error. Loeb v. Loeb, 118 Vt. 472, 493, 114 A.2d 518; see also Loeb v. Loeb, 120 Vt. 489, 497, 144 A.2d 825.
The libellee has no issue to raise before this Court in connection with his motion to dismiss the contempt petition, since the judgment on that issue went in his favor. See Thompson v. Smith, 119 Vt. 488, 511, 129 A.2d 638.
The libellee disputes the propriety of the assessment of costs against him by the lower court. In view of his petition to revise the original order in this case, 15 V.S.A. § 603, providing for the award of costs in such cases by the court as equity may require, is full authorization for their award here.
Judgment affirmed.
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206 A.2d 267 (1965)
Barbara Joy HENDERSON, Appellant,
v.
Thomas S. T. HENDERSON, Appellee.
Nos. 3581, 3582.
District of Columbia Court of Appeals.
Argued December 7, 1964.
Decided January 14, 1965.
Rehearing Denied January 28, 1965.
*268 Marvin C. Taylor, Washington, D. C., for appellant.
*269 H. George Schweitzer, Washington, D. C., with whom Thomas B. Heffelfinger and George Herbert Goodrich, Washington, D. C., were on the brief, for appellee.
Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.
MYERS, Associate Judge:
In 1963 appellee (husband) filed an action against appellant (wife) for an absolute divorce on the ground of five years' voluntary separation. In 1964 the wife filed an action against the husband seeking to vacate and set aside a property settlement agreement dated June 9, 1960, and to obtain in lieu thereof an order for maintenance and support. The two cases were consolidated for trial and resulted in judgments in favor of the husband in both instances. These appeals by the wife ensued.
(1) ABSOLUTE DIVORCE
Section 16-904(a) of the District of Columbia Code, 1961 (Supp. III 1964), provides that an absolute divorce may be granted when the husband and wife have been voluntarily separated from bed and board for five consecutive years without cohabitation. One of the essential elements that the complaining party must establish is that the separation was voluntary on the part of both for the statutory period. Maur v. Ciabarro, D.C.Mun.App., 154 A.2d 366 (1959). The petitioning party, if it cannot be proved that his or her spouse had agreed to the separation throughout the five years or had silently acquiesced therein, must establish that the other spouse did not in good faith manifest a desire to continue the marriage, thus justifying the conclusion that there had been acquiescence in fact to the separation for the critical period. Roberts v. Roberts, 95 U.S.App.D.C. 382, 384, 222 F.2d 408, 410 (1955). The nature of the separation at its inception is not determinative of its continuing character but is only evidence thereof, and if one spouse did not agree to the separation at the beginning, that spouse may thereafter affirmatively consent or silently acquiesce therein for the required period. Martin v. Martin, 82 U.S.App.D.C. 40, 41, 160 F.2d 20, 21 (1947). Even though one spouse might oppose an application for a divorce on the basis that the separation was not mutually voluntary, if the efforts made toward a reconciliation were so slight as to amount to a nullity, silent acquiescence will be held to have taken place and the divorce will be granted. Boyce v. Boyce, 80 U.S. App.D.C. 355, 153 F.2d 229 (1946). In each case the trial judge must decide from all the testimony whether the spouse who disputes that the separation was voluntary did in good faith manifest a real desire to continue the marriage status. "Manifest" connotes a plain or open showing of a desire to resume the marital relationship which must be directed to the petitioning party. Desires not reflected in conduct have little or no legal significance. Parks v. Parks, 73 U.S.App.D.C. 93, 116 F.2d 556 (1940). If either spouse does not continuously acquiesce in the separation during the five years, the statute does not authorize a divorce. Absent proof of mutual consent to the initial separation of the parties, the issue of continuing voluntariness of the separation for the required consecutive five years is generally a question of fact for the trial judge. Scott v. Scott, D.C. Mun.App., 147 A.2d 449 (1959).
The record reveals that the parties were married in New York on September 5, 1934. One child, now emancipated, was born to the marriage. On November 1, 1957, following a violent quarrel, the husband left the marital abode and has never returned. The parties have continued to live separate and apart from bed and board for more than five years. On November 7, 1963, the husband filed suit for absolute divorce. He contends that after he left the wife made no overtures to him toward reconciliation, although he resided in the District of Columbia, and that the separation *270 became voluntary by her silent acquiescence therein continuing without interruption and without cohabitation for at least five years. On the other hand, the wife denies that the separation on her part was ever voluntary.
There is ample support in the record for the finding of the trial judge that shortly after the husband left the marital abode the separation became voluntary on the part of the wife for a period of over five years, which finding was not overcome by proffered testimony that on various occasions during the separation period the wife had told certain witnesses that she did not want the separation and desired a renewal of the marital relationship. As these desires were never communicated to the husband at any time, they cannot be equated with conduct manifesting a good-faith desire to resume married life together. Absent such proof, we must sustain the trial judge's findings that the wife had acquiesced in the mutual voluntary separation of the parties for five consecutive years and affirm the judgment of absolute divorce legally terminating a marriage that in fact was ended.
(2) PROPERTY SETTLEMENT AGREEMENT
On June 9, 1960, after lengthy negotiations between the parties and their attorneys a property settlement agreement was reached and executed by the wife and husband. It is this agreement which the wife seeks to set aside.
In the absence of fraud, duress or concealment, a husband and wife may enter into a valid property settlement which will be binding upon them if fairly and voluntarily made and if intended as a complete and final disposition of all property rights and claims between them. Le Bert-Francis v. Le Bert-Francis, D.C.Mun.App., 175 A.2d 602, 603, 604 (1961). Such agreements are to be encouraged and when made should be enforced. Travis v. Travis, D.C. App., 203 A.2d 173, 175 (1964). The party attacking a property settlement agreement has the burden of proving its invalidity. Le Bert-Francis v. Le Bert-Francis, D.C. App., 194 A.2d 662, 663 (1963).
The wife contends that her signature was obtained by misconduct, concealment and unconscionable pressure by the husband, warranting a holding that the agreement should not be enforced. The husband's misconduct was alleged to be his concealment of his financial situation, his refusal to incorporate in the agreement a "percentage of income" clause, and his willingness to pay only $2,500 a year for her support in the light of her financial status. In lieu of the agreement, the wife asked for a court order fixing maintenance and support.
The trial court held:
"The parties were dealing at arm's length through competent counsel and that the counsel for the [wife] had every technique and method of ascertaining the facts in support of any litigation they might desire to institute rather than execute said agreement; that the agreement between the parties dated June 9th, 1960, is an agreement fairly and voluntarily made and intended as a complete and final settlement of all claims between the parties, including the wife's claim to maintenance, and is valid and enforceable."
The ruling of the trial judge that the agreement was valid and enforceable is supported by the record and the judgment denying the wife's request for an order for maintenance was proper.
Affirmed.
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416 Pa. 242 (1965)
Verratti, Appellant,
v.
Ridley Township.
Supreme Court of Pennsylvania.
Argued November 16, 1964.
January 5, 1965.
*243 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
I.B. Sinclair, for appellants.
R. Paul Lessy, with him Paul R. Duke, for appellees.
OPINION BY MR. JUSTICE JONES, January 5, 1965:
Anthony Verratti and his wife and Frank Verratti and his wife, owned, respectively, lots 80 and 81 located in the Third Ward, Ridley Township (Township), Delaware County. On January 6, 1937, the Township adopted a zoning ordinance under the terms *244 of which Verrattis' lots were zoned "B-Residential". Some years later April 19, 1950 the Anthony Verrattis, then using lot 81 for the storage of trucks used in a trucking business a nonconforming use , applied for a rezoning of lot 81 from "B-Residential" to "Business" and the Township, by ordinance, rezoned that lot. Sometime later October 3, 1956 Frank Verratti applied for a rezoning of lot 80 from "B-Residential" to "Business", asserting that he wanted to use the lot for the construction of a luncheonette,[1] and the Township, by ordinance, so rezoned that lot. On November 14, 1957, the Township, by ordinance, created a "B-Business" classification under which classification a gasoline service station was a permitted use on lots 80 and 81.
On August 11, 1961, Verrattis[2] granted to Thirty Donuts, Inc. options to purchase their respective lots, said options to expire October 11, 1961. On October 7, 1961, these options were exercised and the date of settlement fixed for January 8, 1962, which date was eventually extended until May 15, 1962. Thirty Donuts, Inc. has agreed to sell the lots to Sibarco Corporation, one of appellants.
On January 23, 1962, Sibarco, through its agent, the Atlantic Refining Company, applied to the Township for a building permit to construct a gasoline service station on lots 80 and 81 and submitted to the Township its proposed building plans. On February 19, 1962, the Township notified the applicants of three additional construction plans and statements which had to be submitted in connection with the application and, on March 9, 1962, a new application for a permit, in compliance with the Township request, was *245 submitted. At the time of this application, lots 80 and 81 were zoned "B-Business" under which zoning classification a gasoline service station was a permitted use. Although demanded by applicants, the Township did not act upon this application for a building permit.
In the early part of June, 1962, the applicants were notified of a public hearing to take place before the Board of Commissioners on June 13, 1962 in connection with the rezoning of lots 80 and 81. The time for such hearing was later postponed until June 26, 1962. The record is bare of any evidence as to when and how public notice of these public hearings was given.[3] On June 26, 1962, the Township rezoned all the properties zoned "B-Business" in the Third ward of the Township, including these lots, to an "A-Business" classification under which classification gasoline service stations were not permitted uses.
On June 13, 1962, applicants filed a mandamus action in the Court of Common Pleas of Delaware County requesting the court to direct the issuance by the Township of a building permit. On June 22, 1962, the court dismissed applicants' motion for summary judgment, permitted the amendment of the mandamus complaint and directed an answer to be filed. On August 15, 1962, an amended complaint was filed and, after issue joined and hearing held, the court, sitting without a jury, found in favor of appellants and against the Township and directed the issuance of the permit. Upon exceptions filed to this decree, the court en banc reversed the trial court, found for the Township against appellants and refused to direct issuance of the permit. From that decree this appeal was taken.
*246 Whether mandamus will lie is a matter ordinarily within the sound discretion of the court below (Lhormer v. Bowen, 410 Pa. 508, 513, 188 A.2d 747; Carver v. Upper Darby Civil Service Commission, 399 Pa. 498, 161 A.2d 374; Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177) and our scope of review is to determine whether the court below abused its discretion.
Mandamus issues only where there is a clear and specific legal right in plaintiff, a corresponding duty in defendant and a want of any other adequate and appropriate remedy. The right which it seeks to protect must be clearly established and the writ is never granted in doubtful cases: Travis v. Teter, supra.
In Hertrick Appeal, 391 Pa. 148, 137 A.2d 310, we reviewed the law applicable to the impact of an amendment of a zoning ordinance upon a building permit applied for or issued. In Hertrick, we said, inter alia, (p. 153): "We have held that a building permit may be refused if at the time of application there is pending an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought. Shender v. Zoning Board of Adjustment, 388 Pa. 265, 131 A.2d 90 (1957); A.J. Aberman, Inc. v. New Kensington, 377 Pa. 520, 105 A.2d 586 (1954); Gold v. Building Committee of Warren Borough, 334 Pa. 10, 5 A.2d 367 (1939); But cf. Kline v. Harrisburg, 362 Pa. 438, 68 A.2d 182 (1949). Even when an applicant is issued a permit, unless he proceeds in good faith to incur substantial obligations in reliance thereon,[4] the permit may be vacated or revoked because of subsequently adopted amendments to the zoning ordinance which *247 prohibit the proposed use of the land. A.N. `Ab' Young Co. Zoning Case, 360 Pa. 429, 61 A.2d 839 (1948); Herskovits v. Irwin, 299 Pa. 155, 149 A. 195 (1930). The rule established by these cases was designed to prevent the creation of what would become a nonconforming use after the effective date of a pending zoning ordinance."
Recently, in Lhormer v. Bowen, supra, we were presented with a situation most apposite to the case at bar. In Lhormer, the plaintiffs filed an application for a building permit to construct a gasoline service station upon land then zoned "Commercial District C-2", under which classification such use was permitted. The permit was refused on the ground that, at the time the application was filed, there was pending before the council an amendment to the zoning ordinance which would prohibit the use of plaintiffs' property for a service station. An amendment to this effect was finally adopted on May 14, 1962.[5] This Court, speaking through Justice EAGEN, recognized (410 Pa. at p. 511) "that a property owner does not have a vested right to obtain a building permit, when the intended use is repugnant to the terms of an ordinance then pending upon the date the application is filed, and which is subsequently enacted." However, the Court held that, under the factual situation therein presented, the ordinance was not legally "pending" on the day of the application for the permit. The Court noted (p. 511) "no public hearings were held by either the borough planning commission or the borough council prior to the date of the filing of the application for the permit, or the complaint in mandamus. Neither was there a prior public declaration by the municipality that it intended to rezone the *248 area, nor is there evidence to justify a conclusion that the permit was sought in an effort to circumvent the ordinance. Under such circumstances, the ordinance involved was not `pending'. [citing a case]. The application should have been disposed of in accordance with the law then in effect, or at least pending." It was then noted that (p. 514) "where the right to the permit is clear, the issuance thereof by the proper official is no more than the performance of a ministerial act which admits of no discretion in the municipal officer, and mandamus is both appropriate and proper to compel performance: [citing cases]". In our view, Lhormer controls this case and compels the conclusion that mandamus does lie to command the issuance of the permit.
The court below sought to justify its refusal of mandamus upon the ground that the two prior ordinances which had classified the district in which the lots were located as "B-Business" constituted "spot zoning". Such a declaration of the invalidity of these ordinances cannot justify the refusal of the building permit under the existing circumstance. Presumably both these ordinances were valid when passed and no attack had been made on their validity, even though both ordinances had been in effect for over six years. The attack, when made, was by the Township through whose legislative process these ordinances were passed. It ill behooves the Township now to challenge its own legislative actions to defeat the issuance of a building permit when the use sought by the application was clearly a permitted use in conformity with the two ordinances. Cf: Jacobi v. Zoning Bd. of Adjustment, 413 Pa. 286, 289, 196 A.2d 742. Such belated declaration that these ordinances were invalid because they "spot zoned" these lots cannot now justify denial of a building permit under the circumstances.
Judgment reversed.
NOTES
[1] The building constructed, actually, was used not for a luncheonette but for a beer distributing business.
[2] The wife of Anthony Verratti did not join.
[3] Exhibits P-6, P-7, P-8 indicate the type of notice given but not the manner of giving such public notice.
[4] In the case at bar, there is no evidence that appellants, in reliance upon the "B-Business" classification, made any substantial investment or expenditure and there is nothing in this record which would justify the grant of the permit upon this ground.
[5] On March 16, 1962, application for the permit was filed; on March 19, 1962, the permit was refused; on April 5, 1962, the mandamus action was instituted.
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237 Md. 294 (1965)
206 A.2d 245
PAHL, ET AL.
v.
COUNTY BOARD OF APPEALS OF BALTIMORE COUNTY, ET AL.
[No. 129, September Term, 1964.]
Court of Appeals of Maryland.
Decided January 7, 1965.
The cause was argued before HAMMOND, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.
Harry S. Swartzwelder, Jr., for appellants.
No brief and no appearance for appellee.
MARBURY, J., delivered the opinion of the Court.
In this case, neighboring property owners appealed from an order of the Circuit Court for Baltimore County affirming the action of the County Board of Appeals in granting an application for the rezoning of a tract of approximately eleven acres of land in the Liberty Road area of the Second Election District of Baltimore County from R-6 to R-A. The R-6 zone in Baltimore County is for one or two-family residential use, with *296 an area of 6,000 square feet for a one-family dwelling and of 10,000 square feet for a two-family dwelling. The R-A zone is for residential use as apartments.
The original application for reclassification of the subject tract was filed August 23, 1962, which alleged as the sole ground for reclassification error in the comprehensive zoning map. This application was denied by the Zoning Commissioner who found that there was no showing of error committed by the Baltimore County Council in the adoption of the zoning map. From this order, an appeal was taken to the County Board of Appeals of Baltimore County; and on August 13, 1963, the Board, with two members sitting, granted the reclassification. On September 6, 1963, a petition and order for appeal was filed by the protestants in the Circuit Court for Baltimore County. Thereafter, on September 11, the Board notified all parties of the filing of this petition and order, but no answer or petition to intervene was filed by the applicants. The case was heard by Judge Turnbull on April 9, 1964, where objection was made by counsel for the protestants to hearing argument. This objection was overruled and the court below affirmed the order of the County Board of Appeals.
The property here in question is roughly rectangular in shape. Using Liberty Road as a true east-west thoroughfare, the tract lies to the north of Hilmar Road at a distance of some 1330 feet north of Liberty Road. Hilmar Road to the south of the subject tract (where some of the protestants own property) is developed on both sides with individual homes ranging in value from $15,000 to $25,000. To the west of the property in question, there is a similar neighborhood street known as Clifmar Road. Approximately 300 feet to the north of the subject property is undeveloped land zoned R-6 which is traversed by a stream known as the Scotts Level Branch and where is located a Baltimore County flood control area. To the east of the property is undeveloped land zoned R-A at the time of the adoption of the comprehensive rezoning map by the County Council on November 15, 1962. Prior to the adoption of this zoning map, both the subject property and the tract to the east had been recommended for R-6 zoning by the Planning Department of Baltimore County. However, the Baltimore County *297 Council rejected this recommendation for the tract to the east. It is significant to note here that from an examination of the record, the planning staff was aware of this change in zoning but did not feel that this was a legitimate reason to change the classification of the subject property.
The appellants on this appeal contend that the applicants in seeking reclassification did not meet the heavy burden of proof required of them to establish that the comprehensive rezoning map was erroneous. We agree. Under the well established rule in Maryland, "* * * there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that to sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or in the comprehensive rezoning or else of a substantial change in conditions." Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 269-70, 192 A.2d 502. See also Greenblatt v. Toney Schloss, 235 Md. 9, 200 A.2d 70.
In the case before us, three witnesses were produced below to support the claim of error. The property owner, Carl Julio, and a surveyor, Allan Evans, who was not an engineer, testified that the development of the property within the R-6 classification was not economically feasible by reason of its topography and rock content even though they admitted no test borings had been made. We have held that unsupported general claims of economic unfeasibility of existing zoning will not require a change in zoning status. DePaul v. Board of County Commrs. for Prince George's County, 237 Md. 221. Other claims of error in the zoning of this land rest upon the testimony of a real estate broker, J. Walter Jones, who testified: (a) that it is more logical to continue the zoning line to the improved areas; (b) that there is no reason that a zoning line should be a property line; (c) that there is a need for apartment zoning within the area covered by this comprehensive zoning map, and that the required change would not adversely affect the surrounding property; and (d) that the Baltimore County Council zoned the land adjacent to the east and then made no further study of the applicants' property.
The first two elements of Jones' testimony are similar and will be considered together. If we accept his argument that it is *298 more logical to continue the zoning line to the improved areas and that there is no reason that such line should be a property line, we would countenance terminating a classification only where it abutted existing improvements. However, we think that these are only some of the elements to be considered and that it is more logical that such a zoning line be placed after considering topography and other zoning factors. We have held in the past and repeat that in zoning a line of demarcation must be drawn somewhere. Greenblatt v. Toney Schloss, supra; Shadynook Imp. Assn. v. Molloy, supra.
The claim that there is a need for additional apartments in this area (which is disputed) fails to show anything more than that an R-A use would be more profitable than an R-6 use. The R-A land to the east of the subject property has not been built on. The mere fact that a property owner can make a greater profit by developing in one classification than in another does not in and of itself deprive him of the reasonable use of his land in the constitutional sense. DePaul v. Board of County Commrs. for Prince George's County, supra, and cases therein cited.
Apparently the main reliance by the Board in its opinion was the testimony of Mr. Jones to the effect that the County Council, after zoning the property to the east of the subject tract in the R-A classification, did not carry the zoning over to include this property and gave no further consideration to the property in question. The record is not clear that the Baltimore County Council failed to consider the zoning of the subject property when the tract to the east was zoned, but assuming that this was true, it does not follow that the zoning of the property to the east made it mandatory to zone that here concerned to R-A. Shadynook Imp. Assn. v. Molloy, supra; Renz v. Bonfield Holding Co., 223 Md. 34, 158 A.2d 611.
We hold that the burden resting upon the applicants to show error on the part of the legislative body, the County Council, in the comprehensive rezoning applicable to the property here involved has not been met, so that on this ground we must reverse the order of the Circuit Court, and remand the case with directions to reverse the action of the Board of Appeals and *299 to reinstate the action of the Zoning Commissioner, which denied the appelicants' application for reclassification.
Finally, the appellants claim that the trial court erred in permitting oral argument by counsel for the applicants where no answer to the petition for appeal or no petition to intervene had been filed on behalf of the applicants prior to the argument in the court below pursuant to Maryland Rule B9. While we do not condone the practice followed in the trial court and the overruling of the appellants' objection to hearing oral argument without compliance with this procedural rule, since the appellants concede that no prejudice resulted we see no need to further pursue the matter.
Order reversed and case remanded for further proceedings in accordance with this opinion; the costs to be paid by the applicants Carl and Edward Julio.
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846 S.W.2d 724 (1993)
STATE of Missouri, Respondent,
v.
Max C. SIMPSON, Appellant.
Max C. SIMPSON, Respondent,
v.
STATE of Missouri, Appellant.
No. 75000.
Supreme Court of Missouri, En Banc.
January 26, 1993.
*725 Brad B. Baker, Columbia, for appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
COVINGTON, Judge.
A jury found the appellant, Max Simpson, guilty of forcible rape and second degree assault and the trial court sentenced appellant to concurrent terms of thirty and seven years respectively. Appellant sought Rule 29.15 relief, which the motion court denied after an evidentiary hearing. The Missouri Court of Appeals, Southern District, affirmed the direct appeal and dismissed the appeal of the Rule 29.15 judgment. This Court granted transfer to consider whether an information amended so as to violate Rule 23.08 and § 545.300, RSMo 1986, nullifies the proceedings upon the amended information. Direct appeal affirmed. Rule 29.15 appeal dismissed.
Appellant does not challenge the sufficiency of the evidence. The victim was at a bar when appellant entered. The victim had become acquainted with appellant when they both attended high school, and they engaged in brief conversation. During the conversation, appellant asked victim about stains the victim had on her hands. The victim explained that she had been staining a cabinet in an apartment she owned and wanted to lease. Appellant expressed an interest in renting the apartment. Appellant and the victim left the bar in the victim's car. The victim planned to show the apartment to appellant, then take appellant to his aunt and uncle's home, where he resided.
Appellant and victim went to the victim's house so that the victim could plug in an extension cord, which supplied electricity to the apartment. While there, appellant began kissing the victim who told him "no" and said she should take him to his aunt and uncle's home. Appellant wrapped the electrical cord of a vaporizer around the victim's neck and tightened it so that the victim could not breathe. The victim lost, then regained, consciousness. Appellant dragged the victim into her bedroom where he forcibly removed her clothes. During the following two hours, appellant engaged in sexual intercourse with the victim three times. He threatened to kill her, and he repeatedly slapped her and struck her with his fists.
Later able to escape, the victim ran to her neighbors' residence and called the sheriff's department. Appellant was arrested soon afterward. The victim was examined by an emergency room physician at a local hospital. The physician discovered numerous areas of redness, bruises and abrasions on the victim's body, scratch marks on one breast and the lower back, swelling over the lower back, and red marks around the neck.
The prosecutor originally filed a three-count information against appellant. Count I alleged that he committed the crime of felonious restraint, § 565.120, RSMo 1986, a class C felony. Count II charged him with a class C felony of second degree assault, § 565.060, alleging he "recklessly caused serious physical injury to [the victim] by hitting her about the face and attempting to choke her with an electrical cord." Count III alleged "Defendant, in violation of § 566.030, RSMo, committed the class B felony of rape ... in that ... the defendant had sexual intercourse with [the victim], to whom defendant was not married, without the consent of [the victim], by the use of forcible compulsion."
Six days prior to trial, the prosecutor filed a two-count amended information. Count I of the amended information *726 charged appellant with a class B felony of first degree assault (§ 565.050) "in that ... the defendant attempted to cause serious physical injury to [the victim] by choking her." Count II charged that he "committed the class A felony of forcible rape ... in that ... the defendant had sexual intercourse with [the victim], to whom defendant was not married, without the consent of [the victim] by the use of forcible compulsion, and in the course of such offense, the defendant displayed a dangerous instrument in a threatening manner." The amended information did not charge the defendant with felonious restraint.
The court instructed on first degree assault and the lesser included offense of second degree assault and class A felony forcible rape and the lesser included offense of forcible rape. The jury found the defendant guilty of second degree assault and forcible rape.
Appellant contends in his point relied on in the direct appeal that the trial court erred in allowing the state to file the amended information because "the amended information charged two different offenses than those charged in the original information and such amendment was prejudicial to [the appellant]." In his argument appellant further alleges that what he terms the "defect" in the amended information deprived the court of jurisdiction to proceed on the amended information.
Raised for the first time on appeal, appellant's claim is reviewed for plain error. Rule 30.20. Under plain error review, this Court will not reverse appellant's conviction unless the alleged error resulted in manifest injustice or a miscarriage of justice to the appellant. Id.
Appellant's claims rest on Rule 23.08 and § 545.300. Rule 23.08 provides in part: "Any information may be amended ... at any time before verdict or finding if no additional or different offense is charged, and if the defendant's substantial rights are not thereby prejudiced." Section 545.300 provides:
An information may be amended either as to form or substance at any time before the jury is sworn, but no such amendment shall be allowed as would operate to charge an offense different from that charged or attempted to be charged in the original information.... No amendment of the information ... shall cause a delay of the trial unless the defendant shall satisfy the court that such amendment ... has made it necessary that he have additional time in which to prepare his defense.
The state concedes that first degree assault and second degree assault are different offenses. The first question at issue, therefore, is whether the amended information charged a different rape offense for the purpose of application of Rule 23.08 and § 545.300. This Court concludes that it did.
Section 566.030.1-.2, RSMo 1986, (repealed), under which appellant was charged in both the original and amended information, provided in pertinent part:
1. A person commits the crime of forcible rape if he has sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion.
2. Forcible rape or an attempt to commit forcible rape as described in subsection 1 of this section is a felony for which the authorized term of imprisonment ... is life imprisonment or a term of years not less than five years, unless in the course thereof the actor ... displays a deadly weapon or dangerous instrument in a threatening manner ... in which cases forcible rape or an attempt to commit forcible rape is a class A felony.
Id.
The state contends that § 566.030.2 is merely an enhancement provision. The state's argument was addressed by the Missouri Court of Appeals, Eastern District, in State v. Badakhsan, 721 S.W.2d 18 (Mo.App.1986). The indictment in Badakhsan charged the defendant with four counts of forcible rape. He was convicted of four counts of the class A felony of forcible rape aggravated by subjecting the victim to sexual intercourse with more than one person. Id. at 19. The state contended that the failure to allege the aggravating circumstance of multiple men related *727 only to punishment. The court rejected the state's argument:
First, the crime of rape is not the same as aggravated rape. They are of a different class with different punishment and we determine sufficiency of charge on the basis of whether defendant was sufficiently notified of what crime is charged. Second, even if the state were correct that the additional element under § 566.030.2 ... goes only to punishment, it still must be alleged. Both matters of aggravation and matters that enhance sentence must be pleaded.
Id. at 20-21 (citations omitted). See also Weeks v. State, 785 S.W.2d 331, 332 (Mo. App.1990); Wescott v. State, 731 S.W.2d 326, 331 (Mo.App.1987); State v. Greathouse, 789 S.W.2d 50, 53 (Mo.App.1990); State v. Couch, 523 S.W.2d 612, 614-15 (Mo.App.1975).[1]
In the present case, the amended information specifically charged appellant with the class A felony of forcible rape which requires evidence that in the course of the commission of the rape the defendant displayed a dangerous instrument in a threatening manner. § 566.030.2. For the purposes of application of Rule 23.08 and § 545.300, the amended information charges an offense different from that charged in the original information. The amended information violates Rule 23.08 and § 545.300.
Appellant contends that when an amended information violates Rule 23.08 and § 545.300, the amended information and the subsequent proceedings upon it are a nullity because the "defective information" deprives the trial court of jurisdiction. See e.g., State v. Gladies, 456 S.W.2d 23, 24-25 (Mo.1970). This Court has recently addressed and rejected a similar contention in State v. Parkhurst, 845 S.W.2d 31 (Mo. banc) (December, 1992). "[S]ubject matter jurisdiction of the circuit court and the sufficiency of the information or indictment are two distinct concepts. The blending of those concepts serves only to confuse the issue to be determined. Circuit courts obviously have subject matter jurisdiction to try crimes...." Id., at 35. The Parkhurst reasoning applies equally to amended informations. The trial court had authority to proceed on the amended information in the present case.
Since the trial court had jurisdiction to proceed upon the amended information, the question then becomes whether the violation of Rule 23.08 and § 545.300 requires reversal. In the present case, it does not. Appellant waived his right to object to proceeding on the amended information.
It is significant that the amended information in this case was filed six days prior to trial. The amended information became, for all purposes, a new information. As determined, the court had jurisdiction to proceed upon it. Certain requirements attend the filing of a new information. Upon the filing of a new information, the general rule is that a preliminary hearing is required. § 544.250, RSMo 1986. A *728 preliminary hearing is not required, however, where the person charged with the crime waives the preliminary examination. Id. An accused waives his right to object to the absence of a preliminary hearing when the accused proceeds to trial without an objection. State v. Wood, 596 S.W.2d 394, 400 (Mo. banc 1980). Appellant requested no continuance nor did he object at any time prior to the absence of a second preliminary hearing. He did not move to dismiss the amended information. Appellant waived his right to a preliminary hearing on the amended information.
In accord is Rule 24.04(b)(2), which provides that the accused waives his right to object to the indictment or information if the objection is not made by motion before trial, except for objections that the indictment or information fails to show jurisdiction or to charge an offense. Neither exception to Rule 24.04(b)(2) applies here. Here, an amended information was filed and the case proceeded to trial without objection. See State v. Williams, 800 S.W.2d 118, 119 (Mo.App.1990). Appellant waived his right to object to the information.
Under Rule 24.04(b)(2) the court may grant relief from the waiver for good cause shown. This Court undertakes gratuitous review in this case for the purpose of determining whether relief should be granted. Appellant's convictions may be reversed only if his "substantial rights" were prejudiced by proceeding on the amended information. See Parkhurst, at 35. Appellant has not shown cause to reverse his convictions.
The substantial rights an information is designed to further are: (1) to inform a defendant of the charges against him so that he may adequately prepare a defense, and (2) to protect the defendant against double jeopardy. Parkhurst, at 33-34 (quoting Deluca v. State, 465 S.W.2d 609, 612 (Mo.1971)). The amended information in the present case informed appellant of the charges against him. Appellant, who sought no continuance and never objected to proceeding on the information, now cursorily claims in his brief, without developing his claim, that he was unable to prepare an adequate defense; however, appellant's defense at trial reveals that he was prepared to address the charges in the amended information. His defense was designed and, if believed by the jury, was sufficient to refute the charges of both the class A felony of forcible rape and first degree assault. Appellant's defense was that appellant and the victim left the bar earlier than was indicated by the victim and that the appellant and the victim engaged in consensual sexual activity, but not actual intercourse, in the victim's truck. Appellant then went to the victim's house with the victim and left when other men arrived at the victim's house. Appellant's bare assertion of his inability to prepare an adequate defense is unsubstantiated. Appellant's right to be free from double jeopardy, the second of the rights the information is designed to protect, is not at issue. In summary, neither the right to notice nor the right to protection from double jeopardy was violated by appellant's having been brought to trial under the amended information in this case.
Appellant also appeals the motion court's denial of his motion for summary judgment on appellant's Rule 29.15 motion. Appellant contended that the trial court lacked jurisdiction because of the filing of the amended information. After an evidentiary hearing, the motion court denied the summary judgment motion, entered findings of fact and conclusions of law on the merits of the Rule 29.15 motion, and denied relief.
Appellant limits his appeal to the allegation that the motion court erred in denying his motion for summary judgment. The court's ruling on the summary judgment motion was not an appealable order. Wilson v. Hungate, 434 S.W.2d 580, 583 (Mo.1968). Even if the denial of the summary judgment motion were appealable, Parkhurst makes clear that the trial court had jurisdiction to hear the case. Parkhurst, at 34.[2]
*729 The judgment on the direct appeal is affirmed. The appeal of the Rule 29.15 summary judgment order is dismissed.
All concur.
NOTES
[1] The cases upon which the state relies in support of its argument that the amended information merely enhanced the punishment and did not charge a new or different offense are distinguishable from Badakhsan and the present case. State v. Adams, 808 S.W.2d 925, 933 (Mo.App. 1991); State v. Rogers, 758 S.W.2d 199, 201-02 (Mo.App.1988); and State v. Pinson, 717 S.W.2d 266, 269 (Mo.App.1986), involve amended informations that charged, for the first time, the defendant as a prior or persistent offender. It has long been recognized that amended informations that charge a defendant as a prior or persistent offender do not charge a different or additional offense because the amendments do not allege additional elements that change the nature of the charge; they merely authorize assessment of additional punishment if the defendant is found guilty of the principal charge. State v. Ninemires, 306 S.W.2d 527, 530 (Mo. 1957); see also State v. Miller, 202 S.W.2d 887, 890 (Mo.1947).
In the remainder of the cases cited by the state, the defendant was charged with a specific grade of felony, but the original information failed to include an element essential to assessing punishment for the commission of the crime charged. The amended information in each case did not change the felony or even the range of punishment; it merely included the missing elements necessary for assessing punishment for the offense as originally charged. State v. Bradshaw, 643 S.W.2d 834, 836 (Mo.App.1982); State v. Clemmons, 682 S.W.2d 843, 846 (Mo. App.1984); State v. Adams, 741 S.W.2d 781, 785 (Mo.App.1987); State v. Thornhill, 770 S.W.2d 701, 702 (Mo.App.1989).
[2] Gratuitous review of the court's judgment on the merits of the Rule 29.15 motion reflects that the court's findings and conclusions are not clearly erroneous.
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416 Pa. 369 (1965)
Berkowitz, Appellant,
v.
Wilbar.
Supreme Court of Pennsylvania.
Argued November 10, 1964.
January 5, 1965.
*370 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Edward N. Barol, for appellant.
William M. Gross, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for appellee.
OPINION BY MR. JUSTICE ROBERTS, January 5, 1965:
On May 12, 1964, Stanton A. Berkowitz filed a complaint in equity against the Secretary of Health of the Commonwealth of Pennsylvania seeking a preliminary injunction to restrain the Secretary from dismissing plaintiff from his position as "Institutional Business Manager II" at the Henry R. Landis State Hospital. After consideration of the allegations of the complaint and oral argument, the Commonwealth Court denied the preliminary injunction and plaintiff appeals.
Pursuant to § 212 of the State Civil Service Act of 1941, as amended,[1] the State Department of Health arranged with the State Civil Service Commission for it to administer the Department of Health's civil service *371 system. The position of Institutional Business Manager II was established as one within the classified civil service. On January 9, 1958, appellant was awarded permanent merit system status in that position.
The Civil Service Act was amended in 1963,[2] and by letter of November 1, 1963, appellant received notice from the Director of Personnel of the Department of Health that his position had been placed in the "unclassified service" as of August 27, 1963. The given basis for the change was Section 1(c) (1)[3] of the amendatory act which provides: "(c) `Unclassified service' includes all positions now existing or hereafter created in departments and agencies included in clause (d) (Classifed service) of this section, which are held by: (1) Heads of departments of the Commonwealth and the deputy heads thereof and bureau and division chiefs and all other supervisory personnel whose duties include participation in policy decisions."
Upon receipt of this notice, appellant appealed the ruling to the Civil Service Commission and requested a hearing. On November 27, the Commission replied that the determination as to what positions fell into the unclassified service rested with the Governor, the Budget Secretary and the Executive Board of the Commonwealth. The Commission denied it had any jurisdiction and refused a hearing.
On February 5, 1964, appellant received official written notice from the Commission that his position was placed in the unclassified service, effective August 27, 1963. Then, by letter of April 24, 1964, appellant was advised that his employment as Institutional *372 Business Manager II was to terminate as of the close of business, May 12, 1964. No reason for the termination notice was given, but appellant was reminded that he was in the unclassified service.[4]
On May 1, 1964, appellant appealed to the Commission. On the same day the Commission replied, referring to the letter of November 27, and reiterating that appellant had no right to a hearing. The letter added, however, that appellant's request would be brought to the attention of the Commission at its next regular meeting. At this juncture, appellant began this action in equity.[5]
The court below found it unnecessary at this stage of the proceedings to pass upon any of the substantial questions raised in the complaint. Its decision was based on its belief that appellant's right to an injunction *373 was not clear, his damage not irreparable, that there was doubt whether all the proper parties were named, and that the importance of not interfering with the work of the Department of Health outweighed any benefit to be derived by the issuance of the injunction.
On appeal from a decree which refuses a preliminary injunction, we ascertain only whether there were any apparently reasonable grounds for the action of the court below. If such grounds exist, the decree will be affirmed unless the record presents palpable legal error. E.g., City Line Open Hearth, Inc. v. Hotel, Motel & Club Employees' Union, 413 Pa. 420, 436, 197 A.2d 614, 624 (1964); Lindenfelser v. Lindenfelser, 385 Pa. 342, 123 A.2d 626 (1956).
In view of the well defined principles of law applicable to actions such as this, we are satisfied that the appellant failed to establish his right to a preliminary injunction. Most recently, we held in Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921 (1962), that a preliminary injunction will not be issued unless all of the following elements are established: (1) the existence of a clear right to relief; (2) an urgent necessity to avoid injury which cannot be adequately redressed in damages; and (3) a showing that greater injury will occur if the injunction is refused than if it is granted.
At least one of these essential elements is missing in this case. If, in the proper tribunal, appellant prevails on the merits of his claim, the appointing authority would be required to reinstate him with payment of so much of his lost salary or wages as the Commission, in its discretion, may order. § 27.[6] Appellant replies that this is inadequate protection because payment is discretionary with the Commission. We must, *374 at present, assume that the Commission will not abuse its discretion or act in an arbitrary fashion.
Appellant urges that more than financial hardship is at stake, even assuming he could recoup his monetary losses. His brief argues that his work is specialized and that re-employment in this narrow field is not so easily accomplished. He pleads that he will have to start again at his beginnings, and he contends that his loss of work deprives him of the resources to fight the alleged injustice which has been done to him. These are not matters of record before us, and even if a hearing had been held to prove these specific items of hardship, at best they are speculative considerations which cannot form the basis for issuing the extraordinary relief sought.
We are not unaware of the fact that the Civil Service Commission, not a party to the instant proceedings, in refusing appellant a hearing, begged some of the very questions which appellant raises. That is, in refusing a hearing because appellant was not in the classified service, the Commission assumed the very conclusion which appellant sought to disprove. Accordingly, appellant's remedy is by way of an action in mandamus to establish, if he can, his right to a hearing and reinstatement. See Volunteer Firemen's Relief Ass'n v. Minehart, 415 Pa. 305, 203 A.2d 476 (1964); Pittsburgh City Fire Fighters Local No. 1 v. Barr, 408 Pa. 325, 184 A.2d 588 (1962); Travis v. Teter, 370 Pa. 326, 330-31, 87 A.2d 177, 179 (1952); Slessinger v. Fairley, 340 Pa. 273, 16 A.2d 710 (1940); Raffel v. Pittsburgh, 340 Pa. 243, 16 A.2d 392 (1940). We note from the opinion of the court below that, in fact, appellant began such a mandamus action against the Commission on July 13, 1964.
Since we believe that the Schwab requirement of urgent necessity has not been shown, we find it unnecessary to decide whether appellant's rights are *375 clear and whether greater harm will be done in granting the injunction than in refusing it.
The decree of the court below is affirmed. Each party to pay own costs.
CONCURRING OPINION BY MR. JUSTICE COHEN:
The road blocks that the Governor, the Budget Secretary and the Executive Board of the Commonwealth have placed before appellant's effort to obtain a judicial evaluation of their acts in removing appellant from the classified service of the Commonwealth should merit the grant of equitable relief. To me it seems most oppressive that appellant should be denied the statutory relief provided by the Civil Service Act to question the determination that his employment was in the unclassified service and to question his summary removal on instructions received from the Governor's personal secretary.
The Civil Service Act of 1963 was passed to strengthen and extend civil service employment in the Commonwealth, and the legislature did not contemplate that the Act would be perverted to provide an instrumentality for the destruction of the civil service status of employees who were classified before the passage of the Act. The Civil Service Commission, on two occasions, refused to permit appellant to be heard on the theory that he was no longer protected by the Civil Service Act. We have recently held that mandamus will lie to compel action by an official where his refusal to act in the requested manner stems from his erroneous interpretation of the law, Volunteer Firemen's Relief Asso. v. Minehart, 415 Pa. 305, 203 A.2d 476 (1964). Hence, because an action at law is readily available to appellant I reluctantly concur.
Mr. Justice EAGEN joins in this concurring opinion.
NOTES
[1] Act of August 5, 1941, P.L. 752, § 212; Act of May 21, 1943, P.L. 516, § 1, 71 P.S. § 741.212.
[2] Act of August 27, 1963, P.L. 1257, No. 520, §§ 1-30, 71 P.S. § 741.3 et seq. (Supp. 1963). August 27, 1963, is expressly made the effective date of the Act. § 31.
[3] 71 P.S. § 741.3(c) (1) (Supp. 1963).
[4] Section 21 of the amendatory act specifically provides that "No regular employe in the classified service shall be removed except for just cause." 71 P.S. § 741.807 (Supp. 1963).
[5] The complaint filed by appellant urged several reasons for restraining the appellee from relieving him of his position. First, appellant contended that, as a matter of fact, he is not a supervisory employee whose duties include participation in policy decisions, even assuming that the amendatory act properly places him in the unclassified service. In the alternative he made the second contention that, assuming his work involves participation in policy decisions, he still is a member of the classified service by virtue of the saving provision of Section 30 of the amendatory act, 71 P.S. note, p. 31 (Supp. 1963). Section 30 reads: "Nothing contained in this amendatory act shall be construed to remove from the classified service any position which was in the classified service in the service of the Commonwealth immediately prior to the effective date of this amendatory act."
Thirdly, appellant further contended that the Act, as amended, is unconstitutionally vague because no standards are provided for defining "policy decisions", and that the Act constitutes an unlawful delegation of legislative authority to the executive branch of government. Finally, appellant urged that the Act, as applied to him, results in an unconstitutionally deprivation of his rights to tenure and appeal.
[6] 71 P.S. § 741.951(a) (Supp. 1963).
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846 S.W.2d 503 (1993)
Dale HYDE, Appellant,
v.
The STATE of Texas, Appellee.
No. 13-92-057-CR.
Court of Appeals of Texas, Corpus Christi.
January 7, 1993.
Discretionary Review Refused May 5, 1993.
*504 Richard W. Rogers, III, Corpus Christi, for appellant.
Grant Jones, Dist. Atty., James D. Rosenkild, Asst. Dist. Atty., Corpus Christi, for appellee.
Before NYE, C.J., and GILBERTO HINOJOSA and KENNEDY, JJ.
OPINION
GILBERTO HINOJOSA, Justice.
A jury found appellant guilty of injury to a child, and the trial court assessed punishment at twenty years in prison. We affirm.
Appellant complains that the trial court erred by admitting evidence that he knowingly failed to appear for his first scheduled trial more than a year after the offense. Appellant argues, in point one, that this evidence was not relevant to any issue on guilt, in point two, that it was not admissible under the Texas Rules of Evidence, and in point three, that if the evidence was probative, it was inadmissible because of its prejudicial effect. The State argues that the evidence was admissible for a permissible purpose, had greater probative than prejudicial value, but if improperly admitted, was harmless error.
The evidence shows that six-year-old Michael Jaimes's mother brought him to the Corpus Christi Naval Air Station hospital on the night of February 14, 1986. Blood was coming out of his ear. Dr. James DeMasi examined Michael and found three linear marks on his neck and a circumferential print which "fit perfectly with an adult hand, suggestive of choking."
Irma De La Garza testified that on the evening in question, she and the appellant, along with her three sons, spent the evening at home. After the boys went to bed, she and appellant stayed up and watched television. Around midnight, she went to her room to get ready for bed. She then heard her son make a horrifying scream. As she went to Michael's room, appellant came out. He said, "I didn't do nothing, I didn't do nothing." She checked Michael and found his ear bleeding. Michael was crying. De La Garza decided to take her son to the hospital. The following day, De La Garza asked appellant if he hurt Michael, and appellant said he choked him. Specifically, appellant said, "I assume I did it, because there's no other explanation."
Michael testified that he was fine when he went to bed. While he was sleeping, "really hairy" arms began choking him. Because the room was dark, Michael was unable to see the assailant. The only adults who lived in the house were appellant and his mother.
Gus Rivera testified that he is the bailiff for the 319th District Court. He testified that appellant did not show up for trial in 1987. Appellant objected that the prior failure to appear was an extraneous act of misconduct which was irrelevant and prejudicial. The trial court overruled the objection and gave appellant a running objection to this type of testimony. Lydia Luis then testified that she was the court clerk for the 319th District Court. She testified that the court's docket sheet for May 11, 1987, indicates that appellant failed to appear and a capias and judgment nisi was ordered. Eugene Coffey then testified that he represented appellant on May 11, 1987, the date set for appellant's trial on injury to a child. Coffey testified that he and appellant discussed the trial date, but appellant did not appear.
In closing argument, the prosecutor asked the jury to consider appellant's failure to appear for his trial in 1987 as evidence of his guilt.
Appellant first contends that the challenged evidence was not relevant to any issue. Appellant cites Tex.R.Crim.Evid. 401 which states:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
*505 Appellant claims "the fact that [he] missed a trial setting some fourteen months after the alleged offense has no bearing as to whether or not he choked the child. It does not make any fact that is of consequence to the determination of the action more or less probable." The State counters that appellant's failure to appear and his bond forfeiture were admissible as evidence tending to show flight. Flight, the State asserts, may be considered as evidence of guilt. Appellant argues that the evidence does not show flight because appellant remained at Jaime's apartment the day after the incident. Appellant, citing Hicks v. State, 82 Tex. Crim. 254, 199 S.W. 487, 488 (1917), appears to concede that evidence of flight may be admissible, but asserts that his failure to appear was not truly connected with whether or not he committed the offense, and therefore was not so connected with the offense on trial as to render it relevant as a circumstance bearing upon his guilt.
We disagree with appellant's assertions. When unexplained, flight has long been deemed indicative of a "consciousness of guilt." Logan v. State, 510 S.W.2d 598, 600 (Tex.Crim.App. 1974). A "consciousness of guilt" is perhaps one of the strongest kinds of evidence of guilt. Torres v. State, 794 S.W.2d 596, 598 (Tex.App.Austin 1990, no pet.). It is consequently a well accepted principle that any conduct on the part of a person accused of a crime subsequent to its commission, which indicates a "consciousness of guilt," may be received as a circumstance tending to prove that he committed the act with which he is charged.
A defendant's failure to appear at a previous setting of his case and the forfeiture of his bond is properly admissible as evidence to show flight. Aguilar v. State, 444 S.W.2d 935, 938 (Tex.Crim.App.1969); see Cantrell v. State, 731 S.W.2d 84 (Tex. Crim.App.1987). Flight, in the context of bail-jumping, may be construed as evidence of guilt. Cantrell, 731 S.W.2d at 731. To exclude evidence of flight, the defendant has the burden to affirmatively show that the flight is directly connected to some other transaction that is not connected with the offense on trial. Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex.Crim.App.1975); see Havard v. State, 800 S.W.2d 195 (Tex. Crim.App.1989).
While appellant may not have fled immediately after committing the offense, he did jump bail and fail to appear to avoid the consequences of his actions. The evidence was relevant to show guilt. Appellant's first point is overruled.
In point two, appellant claims that the trial court erred in admitting the evidence because "it was evidence of a crime, wrong, or act that had no permissible purpose." We disagree. Our discussion above shows that evidence of flight is an act which occurs after the offense which is relevant to establish guilt. Point two is overruled.
In point three, appellant contends that the trial court erred because the danger of unfair prejudice outweighed its probative value. We disagree. Appellate courts uphold a trial court's ruling on appeal absent an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.App. 1990) (Opinion on Rehearing). The evidence established flight, and thus was relevant to showing guilt. We admit, given the weight of the State's other evidence, that appellant's failure to appear may not have added much to the State's case. But likewise, appellant's failure to appear is not the type of misconduct that can be said to have great unfair prejudicial danger. We do not find that the trial court abused its discretion. Appellant's third point is overruled.
The judgment of the trial court is affirmed.
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846 S.W.2d 663 (1993)
312 Ark. 48
Kenneth Ryan HOLLAMON, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 92-790.
Supreme Court of Arkansas.
February 8, 1993.
*664 Daniel D. Becker, Public Defender, Terri Harris, Deputy Public Defender, Hot Springs, for appellant.
Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.
BROWN, Justice.
This is an appeal from convictions for rape and attempted murder, which resulted in sentences of life imprisonment for rape and twenty-five years for attempted murder. The appellant, Kenneth Ryan Hollamon, appeals on the basis that he was denied equal protection of the laws due to a racially-motivated peremptory challenge by the prosecutor. He further urges that he is deaf and that the circuit court erred in failing to suppress his incriminating statement which was given without the assistance oi an interpreter, we aiiirm tne convictions and sentences.
The victim had been living in an apartment complex in Hot Springs for about two weeks when she reported to police that she had been raped at about 12:45 a.m. on May 10,1991. On several prior occasions before the attack, she had talked to the appellant in the apartment building. She later testified at trial that the appellant had beaten her, raped her vaginally and anally, and forced her to perform oral sex on him. In addition, he strangled her three times, causing her to pass out on each occasion. After she awoke the third time, she found herself in a closet with a plastic covering over her head. She ran next door to a friend's house and called the police.
The appellant was found by the police on the grounds of the complex, and he was taken into custody. He was first interviewed by Detective Vicki Flint of the Hot Springs Police Department during the early morning hours after the attack. Detective Flint advised him of his Miranda rights, first reading them to him from the standard form and then allowing him to read them. He indicated that he understood his rights, and he initialed and signed the waiver and consent form. Hollamon gave two statements, and in the second statement he confessed to the rape.
The appellant filed a pre-trial motion to suppress the incriminating statement, asserting that Detective Flint had violated Ark.Code Ann. § 16-89-105(c) (Supp.1991) by not providing an interpreter prior to taking the statement. A Denno hearing was then conducted, and an interpreter was present. At the hearing, Detective Flint testified that she was unaware of any hearing problem at the time she took the appellant's statement, although she saw that he was wearing a hearing aid. Detective Gary Ashcraft also observed the hearing aid. The circuit court made preliminary findings that the appellant had demonstrated that he could hear and communicate and that his statement was "intelligently, knowingly, and voluntarily made." Three hearings on deafness then ensued: on August 19, October 7, and October 28, 1991. *665 Expert witnesses, including an audiologist, a speech pathologist, and two rehabilitation counselors, testified. The court denied the motion to suppress by letter opinion and found that the appellant was not deaf within the meaning of § 16-89-105(c) but was able to communicate in a normal conversational tone. The case was tried before an all-white jury in a three-day trial, and the two convictions resulted.
I. BATSON OBJECTION
Hollamon contends, as his first point for reversal, that he was denied equal protection under the state and federal constitutions because he is black, the victim is white, and the state, during jury selection, exercised a peremptory strike that excluded the sole black juror from the jury panel. As an adjunct to this argument, he urges that the circuit court failed to make the necessary sensitive inquiry under Batson v. Kentucky, 476 U.S. 79,106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986).
Prior to voir dire, a black woman named Stephanie Russell requested to be excused because she needed to be at work at the Majestic Hotel in Hot Springs for the next two days. She also stated that she had been subpoenaed to Garland County Circuit Court in Hot Springs the day before to testify on behalf of her boyfriend, who was also a client of the appellant's defense counsel. Her boyfriend, however, had failed to appear for trial.
Ms. Russell was seated for voir dire as the only black on the panel. Two other black panel members had been excused for employment reasons. At a bench proceeding after the jury was excused, the prosecutor moved to strike Ms. Russell for cause on the grounds that she had a close association with a fugitive defendant who was to be tried the preceding day, a circumstance that might dispose her to be "prejudiced against law enforcement in general," and also because she appeared "to be under the influence of some kind of drugs or alcohol today." The court held that this was not sufficient for a challenge for cause.
The prosecutor then exercised peremptory challenges and excused Ms. Russell and one other juror. The appellant's counsel requested that in light of the fact that both the accused and the dismissed juror were black the state be required to give its reason for striking her under Batson. The prosecution responded:
Your Honor, we're striking Stephanie Russell for the reasons we just reiterated for the Court, in that we have information now that she is the girlfriend of Anthony Barron, who is ... a fugitive from justice from this Court. He was bench warranted yesterday.
He was represented by Mr. Becker [the appellant's attorney]. At the time she was asked if she had any association with any lawyers in this case, it is my recollection that she did not come forward. She appears to be acting slow in her movements and responses today. Her speech was slower than normal when she came up to the Bench. She does not appear to be mentally at herself today. And for all those reasonsunless co-counsel has otherswe have exercised our peremptory challenge against her.
The circuit court then asked the state's cocounsel if there were any other reason. When she replied in the negative, the court turned to the defense and asked for a response. Defense counsel argued that the explanation was not sufficient reason to strike the only black on the jury. Additional statements were made by counsel for both sides. The court expressed its concern about the relationship between the appellant's attorney and Ms. Russell and found it to be "sufficient basis for striking Ms. Russell."
In Batson v. Kentucky, supra, the United States Supreme Court held that a defendant who makes a prima facie showing of purposeful racial discrimination in juror challenges shifts the burden to the state to prove that the exclusion of jurors is not based on race. The Court, however, refrained from formulating procedures to implement Batson, and the states have been forced to chart their own way in devising procedures for the time, place, and manner of the Batson process.
We have held that when the neutral explanation given by the state is sufficient, no sensitive inquiry is required. Colbert v. *666 State, 304 Ark. 250, 801 S.W.2d 643 (1990). In Colbert, we declared:
We now believe that our previous interpretations of the Batson holding were misdirected only to the extent that we have said that Batson requires a "sensitive inquiry" by the trial court in every instance, notwithstanding the validity of the state's explanation for its peremptory challenges.
We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state's explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.
The standard of review for reversal of the trial court's evaluation of the sufficiency of the explanation must test whether the court's findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant's objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state.
304 Ark. at 254-255, 801 S.W.2d at 646.
Accordingly, the defendant must first establish a prima facie case of purposeful discrimination, which the appellant clearly did in this case when he pointed to a peremptory strike by the state dismissing the sole black person on the jury. After the circuit court inferred purposeful discrimination, the burden shifted to the prosecutor to give a racially neutral explanation for the peremptory challenge. In the bench proceeding, the circuit court questioned both the prosecutor and defense counsel on the challenge, and counsel for both sides addressed the issue. The circuit court stated that it was concerned about the relationship between the appellant's attorney and Ms. Russell and found that the racially neutral explanation offered by the state was a sufficient basis for its peremptory strike.
Prior to that decision, however, the court had refused to dismiss Ms. Russell for cause. The prosecutor's explanation of a peremptory challenge, though, need not rise to the level that would justify the exercise of a challenge by the trial court for cause. Batson v. Kentucky, supra.; Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). Thus, the fact that the circuit court held the reasons insufficient for a challenge for cause does not mean that the same reasons could not show racial neutrality to support the exercise of a peremptory challenge.
We agree with the circuit court that the relationship of this juror to defense counsel is a valid concern that is not rooted in racial bias. Ms. Russell was friendly with a defendant who was to have been tried the previous day and defended by the appellant's counsel. She had been subpoenaed to testify as part of the defense. One could reasonably conclude that her sympathies lay with the defense. Hence, we cannot say, under these circumstances, that the circuit court's acceptance of the prosecutor's justification was clearly contrary to the preponderance of the evidence. Accordingly, a further inquiry on the matter was not warranted. On this point, we note that the appellant did not specifically ask the court to conduct a further inquiry. Moreover, we are not certain that what transpired in the bench proceeding was not a sensitive inquiry. Both counsel were questioned by the court, statements were made, and the court made its finding. In this regard, the appellant offers no clue as to what additional facts might have come to the circuit court's attention by virtue of a further inquiry.
Finally, we observe that during voir dire the appellant questioned the statistical representation of blacks in the jury pool. At one point, it was noted by appellant's counsel that there were four blacks in a pool of sixty persons. A challenge to the pool on grounds that it did not represent a crosssection of the community was mounted and the circuit court denied the objection. Although we have, in accordance with Supreme *667 Court Rule 11(f), reviewed the issue, we note that it was neither raised on appeal nor sufficiently developed at trial for our consideration.
II. SUPPRESSION OF STATEMENT BECAUSE OF DEAFNESS
The appellant argues, as his second point for reversal, that the circuit court erred in denying his motion to suppress his statement because no interpreter was made available. According to the appellant, the police officers violated the dictates of Ark. Code Ann. § 16-89-105(c) (Supp.1991):
(c) In the event a person who is deaf is arrested and taken into custody for any alleged violation of a criminal law of this state, the arresting officer and his superiors shall procure a qualified interpreter in order to properly interrogate the deaf person and to interpret the person's statement. No statement taken from the deaf person before an interpreter is present may be admissible in court.
The question we must resolve is whether the appellant was deaf at the time he gave his statement to Detective Flint. The term "deaf" is not defined in the statute. In Black's Law Dictionary, 6th ed. (1990), however, this definition following "Deaf person" appears, and the appellant urges us to adopt it:
Any person whose hearing is totally impaired or whose hearing is so seriously impaired as to prohibit the person from understanding oral communications when spoken in a normal conversational tone.
The testimony offered at three deafness hearings was varied. An audiologist testified that the appellant had severe hearing loss in his right ear and impaired hearing in his left ear, which was remedied to some extent by a hearing aid. A speech pathologist testified that the appellant's language skills were akin to those of a six year old. Detective Flint testified that he was wearing a hearing aid at the time he gave his statements and that the appellant understood the questions asked during his interrogation. The victim also testified to her conversations with the appellant before the day of the rape and gave no indication that he could not hear.
There is also the fact that the appellant alludes to no example of how his asserted deafness encumbered him in any way during the interrogation process. Thus, we are confronted with a situation in which the appellant did not request an interpreter and gave no indication that one was necessary. Had the appellant requested such assistance or given any indication that he suffered from hearing loss and did not understand the proceedings, our assessment of his status might be entirely different. However, no such indication of deafness was made to the investigating officers.
Moreover, the circuit court held three hearings on the appellant's auditory ability, as well as other pretrial hearings, and concluded that he was not deaf under the statute. We note in particular that the court had occasion to observe the appellant at these hearings and assess his abilities first-hand, which, no doubt, weighed heavily in its decision. The court then followed the definition in Black's Law Dictionary for deafness and found that the appellant could communicate with other persons in a normal conversational tone.
Under these circumstances, we cannot say that the circuit court clearly erred in its finding. Where witness credibility is involved, wide discretion is given to the trial court which has the opportunity to observe those witnesses, and conflicts in that testimony are for that court to resolve. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Similar discretion should be afforded the trial court in assessing a witness's ability to hear.
There is one final point. The incriminating statement was not introduced into evidence during the state's case. The circuit court did rule that it was admissible for purposes of impeachment, and the appellant moved for a mistrial. The appellant, however, never took the stand. It is reasonable to assume that the threat of impeachment kept Hollamon off the witness stand, which raises the specter of prejudice. Yet, it is the burden of the defendant to show specifically how he was prejudiced by presenting a proffer of what testimony was precluded or by some other *668 demonstration of prejudice. This was not done, and we are left to speculate on what testimony Hollamon might have given had it not been for the threat of impeachment.
Furthermore, Hollamon's counsel made a secondary argument for mistrial that Hollamon's communication skills were so deficient that he could not have taken the stand in any event regardless of the impeachment potential. The circuit court rejected the argument, noting that it had observed the appellant's reaction to testimony at times during the course of the trial, the implication being that the appellant could hear the proceedings in the courtroom. Again, we defer to the circuit court's superior ability to assess the appellant's ability to hear.
The record has been examined in accordance with Ark.Sup.Ct.R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
Affirmed.
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01-03-2023
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10-30-2013
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