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201 F. Supp. 846 (1962)
OIL TRADING ASSOCIATES, INC., Plaintiff,
v.
TEXAS CITY REFINING, INC., Defendant.
United States District Court S. D. New York.
January 26, 1962.
*847 Milton Pollack, New York City, for plaintiff.
Carter, Ledyard & Milburn, New York City, for defendant. Edwin H. Krom, Wesley J. Liebeler, New York City, of counsel.
DAWSON, District Judge.
These are motions and cross-motions for summary judgment on the third and fourth causes of action set forth in the complaint. There are ten causes of action in the complaint, all growing out of alleged violation of a contract dated May 1, 1952, a copy of which is attached to the complaint, wherein the defendant appointed plaintiff as exclusive agent for the purchase of crude oil and sale of the products of defendant's refinery, and provided for commissions on such purchases and sales. Both parties state that no facts are in controversy on the third and fourth causes of action and both desire summary judgment.
Third Cause of Action
Plaintiff moves for summary judgment in the amount of $5,256.44 on the third cause of action, claiming defendant's failure to pay commissions due to it on a certain sale of oil by defendant to Metropolitan Petroleum Corporation, which contract was negotiated and arranged for by plaintiff in its capacity as defendant's sales agent. This contract with Metropolitan Petroleum Corporation, which became effective December 29, 1953, provided that defendant would sell to Metropolitan six "T-2 sized cargoes," 10% more or less at Metropolitan's option, in each of the three years 1954, 1955 and 1956, delivery of one T-2 cargo to be made at six specified times during each year. The contract defined a T-2 cargo as containing 114,700 barrels.
During 1954 deliveries actually made pursuant to the Metropolitan contract were greater than the amounts set forth in the delivery schedule by some 113,277 barrels. Apparently deliveries made in the early part of the first quarter of 1955 were also being made at a greater rate than set forth in the original contract. In February 1955 a letter was exchanged between the defendant and Metropolitan reading as follows:
"Metropolitan Petroleum Corporation 514 Kinderkamack Road Oradell, New Jersey
"Attention: Mr. C. J. Blake
"Gentlemen:
"Per your recent conversations with Oil Trading Associates, Inc., we confirm the understanding that the first 345,000 barrels of No. 2 oil lifted by you through the first quarter of 1955, under contract dated December 29, 1953, will be the contract *848 quantity. Accordingly, the contract quantity will be increased by any excess over and above 345,000 barrels effected by the following liftings.
Date Quantity Vessel
January 12 97,555.28 VALCHEM
January 1/31 17,444.77 Balance of T-2
February 8 96,558.11 VALCHEM
March 8/9 75,000.00 (estimated) VALCHEM
March 23 95,000.00 (estimated) VALCHEM
"As of March 31, 1955, there will be an unlifted balance of nine (9) T-2 cargoes of approximately 115,000 barrels each remaining under the above mentioned contract.
"If the above conforms with your understanding, please sign one copy of this letter and return it to us for our files.
"Very truly yours,
William H. Fetter
William H. Fetter
General Manager
"WHF:MM
ACCEPTED:
This 28 day of February,
1955
METROPOLITAN PETROLEUM
CORPORATION
By C. J. Blake"
Deliveries continued to be made under this letter agreement of February 28, 1955 until April 27, 1956, at which time defendant and Metropolitan cancelled the existing contract and entered into a new agreement effective July 1, 1956. In the meantime the Sales Agency Agreement between plaintiff and defendant had been cancelled effective as of November 15, 1955.
Under the terms of the basic Sales Agency Agreement between the parties it was provided that
"After the termination of this contract, whether on December 31, 1953 or at any other date, commissions shall continue to be paid to us monthly upon all deliveries against open contracts in force upon the said termination date, but we shall not be entitled to commissions for deliveries, after such termination, under any renewals of any contracts completed after such termination."
There is no dispute that the original contract with Metropolitan was an "open contract in force" on November 15, 1955, the date of the termination of the Sales Agency Contract. The parties do disagree, however, on the amount of oil yet to be delivered under this "open contract." The dispute arises as a consequence of different interpretations of the second paragraph of the February 28, 1955 letter agreement.
It is the position of the defendant that the total amount to be delivered under the contract with Metropolitan was 2,064,600 barrels over the term of the contract, i. e., eighteen T-2 sized cargoes, each of which was to be 114,700 barrels; that the mere fact that more barrels were delivered in the earlier part of the contract than was originally contemplated did not increase the total amount which would be open at the time of the termination of the Sales Agency Agreement.
On the other hand, it is the position of the plaintiff that the letter agreement of February 28, 1955 amended the original agreement with Metropolitan so as to provide that despite the additional deliveries which had been made in the early part of the contract, nevertheless, as of March 31, 1955 there would still be nine T-2 cargoes of approximately 115,000 barrels each to be delivered from that date on. It appears from the papers that in fact nine T-2 cargoes or 1,035,000 barrels were delivered by Texas to Metropolitan subsequent to March 31, 1955. *849 The question is whether this entire amount was delivered pursuant to the letter of February 28th (an "open contract" in force at the time of the termination of the Sales Agency Contract) or whether a portion of it (167,969.46 barrels, delivered in the early part of 1957) was delivered under a renewal contract of June 30, 1958.
The issue on these motions comes down to a determination of the meaning of the second paragraph of the agreement of February 28, 1955. Was it intended to increase the total amount to be delivered under the original contract with Metropolitan? Was the statement that as of March 31, 1955 there would be an unlifted balance of nine T-2 cargoes an amendment of the original agreement so as to increase the total amount to be delivered, or was it merely a mistake in the assumption of the writer of the letter that half the cargoes had been delivered by that date and that half still remained to be delivered? The plaintiff maintains that the agreement of February 28, 1955 was an amendment of the original Metropolitan contract so as to increase the total amount to be delivered thereunder. Defendant maintains that it was not such an amendment. Such conflict in interpretation is specifically pointed up by statement "25" of the statements of alleged undisputed facts submitted by counsel for defendant pursuant to Rule 9(g) of the rules of this court. After reciting the language of the letter of February 28, 1955, defendant alleges that an undisputed fact was that "Metropolitan and defendant did not intend by such language to increase the quantity of No. 2 heating oil so to be delivered." Plaintiff disputes this alleged fact and maintains that the intention of the parties was to increase the amount of oil to be delivered.
We have, therefore, an important issue of disputed fact. This dispute cannot be determined merely from the language of the agreement of February 28, 1955. It must be determined in the light of the negotiations of the parties and the business relationship of the parties. The letter itself is ambiguous. Where a contract is ambiguous, and parol evidence is relevant and material to the issue of construction, a question of fact is presented.
It is the aim of the courts in interpreting a written contract, to give effect to the mutual intention of the parties as it existed at the time of the execution of the contract. It cannot be determined from the facts before the Court whether the parties ever considered the question now presented, or if they did, what their intention was. Such determination may not be made on affidavits but can only be determined after trial. It would be premature to grant summary judgment under these circumstances, even though both parties have moved for summary judgment. Farrand Optical Co. v. United States, 107 F. Supp. 93 (S.D.C.N.Y.1952).
The Court is under no duty to grant summary judgment merely because both parties have moved for it. Volunteer State Life Insurance Company v. Henson, 234 F.2d 535 (5th Cir. 1956).
Where a written agreement is ambiguous the intent of the parties who executed it is important, and if the intent is disputed a genuine issue of material fact exists which cannot be determined upon a motion for summary judgment. Severson v. Fleck, 251 F.2d 920 (8th Cir. 1958); Rolle Mfg. Co., Inc. v. Marco Chemicals, Inc., 92 F. Supp. 218 (D.C.N.J.1950).
The motion and cross-motion for summary judgment on the Third Cause of Action are denied.
Fourth Cause of Action
This claim arises out of the Agency Contract between the parties, which contract was dated May 1, 1952. The following facts exist without substantial controversy:
A contract for the sale of gasoline, negotiated by plaintiff, between defendant and Time Oil, was entered into on January 27, 1954. Under this contract, as amended by letter of March 8, 1955, *850 Time had the option to require defendant to deliver 135,000 additional barrels of gasoline during the third quarter of 1956. Time exercised this option and requested the delivery of 135,000 barrels. On August 8, 1956, however, defendant and Time, by letter, mutually agreed to forego delivery of this quantity. Instead defendant promised to pay Time one-quarter cent per gallon on the defaulted delivery quantity, and in addition to make delivery of a similar amount during the first quarter of 1958. Some time before this delivery in 1958 could be made, however, the entire contract between Time and defendant was cancelled by mutual consent.
Plaintiff claims it is entitled to commissions on the value of the gasoline which defendant was required to deliver to Time when Time exercised its option. Plaintiff concedes that the contract was later cancelled, delivery never made and payment never received by defendant. Plaintiff nevertheless contends that it had an absolute and unconditional right to commissions on the "option" cargo, which right adhered the moment Time exercised its option and bound defendant to deliver thereby, and that any subsequent acts by the parties could not operate to defeat its right to commissions. Plaintiff argues that it did all that it was required to do under its contract with defendant, that is, negotiated the Time-Oil contract and submitted it for approval and signature by defendant.[1]
In answer to plaintiff's arguments, defendant urges that although the general rule is correctly stated (i. e., an agent earns his commissions when he produces a person ready and willing to enter into a contract on his principal's terms) there is a very clear exception when the agent and principal agree that the agent is to receive his commission only upon the happening of a certain subsequent event or condition. Defendant argues that plaintiff's right to commissions did not become absolute upon the signing of the contract but rather is contingent upon subsequent events and conditions.
Defendant claims three conditions precedent to plaintiff's right to receive commissions:
(1) The second sentence of paragraph 2 of the Sales Agency Contract specifies the date of commission payment to plaintiff as being the 10th day of the month following the calendar month in which payment was received by defendant. Defendant contends that, therefore, receipt of payment by it is a necessary prerequisite to payment of commissions to plaintiff. Plaintiff asserts that this sentence was intended merely to fix the time for payment most convenient to the parties, rather than the right to receive commissions.
(2) The first sentence of paragraph 3 talks of commissions of "¾ of 1% of the invoiced value of all sales. * * *" Defendant says that this is an implied condition that invoices must be prepared. It is plaintiff's position that the "invoiced value" refers merely to the price of the gasoline sold as specified in the contract.
(3) Paragraph 4 of the Sales Agency Contract says that commissions are to be paid to plaintiff "monthly upon all deliveries against open contracts" after the termination of the Sales Agency Contract. Defendant says that since there were no deliveries of the optioned cargo here there are no commissions owing *851 to plaintiff. Plaintiff says that this paragraph means only to continue its right to receive commissions after the Sales Agency Contract terminated and should not be read to impose a condition precedent to such right to receive commissions.
In short, plaintiff claims that it is entitled to receive commissions absolutely and unconditionally upon acceptance and signing of the Time contract by defendant and Time and the subsequent option exercised by Time. Texas urges that Oil Trading's right to commissions accrues only after (1) invoices have been prepared, (2) payment has been received defendant from Time, and (3) delivery has been made by defendant to Time.
It seems clear, from a reading of the contract as a whole, that the parties intended that plaintiff's right to commissions be fixed as of the time plaintiff procured a customer willing to enter into a contract on defendant's terms, and a contract was thereafter accepted and entered into by the principals. The so-called "conditions" merely attempted to set forth a convenient time for payment.
But there is no need to rest this decision solely on the foregoing basis since, as plaintiff points out, even if its right to payment was conditional, it is nevertheless entitled to recover because it was the action of defendant which prevented the occurrence of those conditions.
A seller who is obligated to a broker for commissions upon the occurrence of certain conditions cannot relieve himself of the obligation to pay those commissions by acting in such way as to prevent the occurrence of those conditions. As the court held in Polley v. Plainsun Corp., 7 Misc. 2d 605, 166 N.Y. S.2d 184 (1957), at 189: "Not only are promises for positive performance implied, but the negative duty of a promisor not to prevent performance of any condition qualifying his promise is likewise implied." And further quoting Sidella Export-Import Corp. v. Rosen, 273 A.D. 490, 492, 78 N.Y.S.2d 155, 157 (1st Dep't 1948): "Every contract of agency carries with it an implied obligation on the part of the principal to do nothing that would thwart the effectiveness of the agency." See also, Stern v. Gepo Realty Corp., 289 N.Y. 274, 45 N.E.2d 440 (1942); Weiner v. Infeld, 116 Misc. 323, 190 N.Y.S. 82 (1921); Colvin v. Post Mtg. & Land Co., 225 N.Y. 510, 122 N.E. 454 (N.Y.Ct. of Appeals 1919).
This is equally true in the case where the principals to a contract mutually rescind or cancel the entire contract, thereby preventing delivery, payment, invoicing or any number of conditions the occurrence of which may have been prerequisite to the broker's right to collect commissions. The law is authoritatively summed up in 3 Corbin on Contracts, § 768, p. 956 (1951) as follows:
"If the owner, after the broker procures an able and willing purchaser and there is mutual assent on terms, prevents the happening of the condition by refusing to make the conveyance or by a voluntary rescission of the agreement with the purchaser, the condition is eliminated and the broker can get judgment for the agreed commission."
See also, Frederick Zittel & Sons v. Schwartz, 192 A.D. 353 (1st Dep't 1920), 182 N.Y.S. 638, 642:
"It is unnecessary to cite authorities to the proposition that if a vendor voluntarily releases a vendee from his contract, which might have been enforced, the broker of the vendor may recover his commissions. To defend against the broker's claim, the vendor must at least show that his consent to the cancellation of the contract was a consent to a legal right in the vendee. [Citing cases]."
Defendant points to a portion of the Texas-Time contract which reads, inter alia:
"Should Seller and Buyer decide not to exercise respective rights to require delivery and effect delivery, then cargo will not be lifted and *852 the quantity, per PP 1, and the applicable quantity specified in PP 5 shall be reduced by an amount equivalent to the cancelled cargo."
Defendant argues that the above clause is sufficient to release it from liability to plaintiff since it was contemplated by both the parties that certain events or business conditions might make fulfillment of the contract impractical or impossible. Defendant further argues that plaintiff, having negotiated the Texas-Time contract was well aware of this possibility and cannot now be heard to demand compensation as a result of the joint exercise of this cancellation clause.
It is well-settled that all the parties to a contract, acting together, can rescind, revoke, cancel or modify a contract in any way they wish. The Joint Cancellation Clause, cited above, does no more than set forth the law as it exists. With or without a Joint Cancellation Clause, the contracting parties can jointly cancel; but in so doing, they cannot defeat a broker's claim for compensation. Frederick Zittel & Sons v. Schwartz, supra.
There are cases where one or both of the parties to a contract reserve a unilateral right to revoke or rescind the contract, and in these situations, when a contract is cancelled, the broker is denied recovery. Wiesenberger v. Mayers, 281 A.D. 171, 117 N.Y.S.2d 557 (1st Dep't 1952). The reason for denying recovery to a broker in these cases is obvious: there may very well be no contract for lack of mutuality, or if there is a contract, it may be voidable. In any case, as the court in Wiesenberger said (p. 177, 117 N.Y.S.2d p. 563):
"* * * This privilege of escaping from the contract having been balanced by a corresponding right of withdrawal on the part of the sellers, the entire transaction was rendered inchoate and tentative in character in any event * * *."
But the case at bar presents an entirely different situation. The contract was binding on both parties, an option was exercised and defendant became obliged to deliver the 135,000 barrels of gasoline. The later cancellation by defendant, even though done in conjunction with Time, was an act which prevented the happening of the conditions. The principal cannot, by his own act, prevent the conditions and escape payment of broker's commissions.
Any statement of material fact not controverted by the opposing party is deemed admitted, according to Rule 9(g) of the Rules of this court. Plaintiff's statement of fact, filed pursuant to Rule 9(g) alleges the contract price of the optioned cargo was $687,372.50, and plaintiff's commission on said quantity is $5,155.29. This allegation has not been controverted by the defendant. Plaintiff is entitled to summary judgment in the amount of $5,155.29 on the Fourth Cause of Action. So ordered.
NOTES
[1] Paragraphs 3 and 4 of the Contract provide:
"3. As compensation for our services, you are to pay us a commission of ¾ of 1% of the invoiced value of all sales excepting sales of residuum, upon which you are to pay us 1¢ per barrel. Commission shall be paid to us not later than the 10th of each month for payments received during the previous calendar month.
"4. After the termination of this contract, whether on December 31, 1953 or at any other date, commissions shall continue to be paid to us monthly upon all deliveries against open contracts in force upon the said termination date, but we shall not be entitled to commissions for deliveries, after such termination, under any renewals of any contracts completed after such termination."
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150 Conn. 314 (1963)
TOWN AND COUNTRY HOUSE AND HOMES SERVICE, INC.
v.
KENNETH EVANS
Supreme Court of Connecticut.
Argued December 5, 1962.
Decided February 19, 1963.
BALDWIN, C. J., KING, MURPHY, SHEA and ALCORN, JS.
*315 Robert B. Seidman, for the appellant (plaintiff).
Louis L. Bucciarelli, for the appellee (defendant).
SHEA, J.
The plaintiff conducts a housecleaning business and provides men and machinery for that purpose. The defendant was employed by the plaintiff from May, 1957, to March, 1960. It was the plaintiff's custom to require its employees to sign covenants binding them, under certain circumstances, not to engage in the housecleaning business after the termination of their employment with the plaintiff. The defendant was requested to sign such a covenant but refused to do so. He worked for the plaintiff at the homes of various customers in Fairfield County in this state and in Westchester County in New York. During the latter part of his employment, he told a number of the plaintiff's customers *316 that he was planning to enter the housecleaning business for himself, and he solicited business from them. Thereafter, the defendant terminated his employment and started his own housecleaning business. At the time of the trial he had fifteen regular customers, some of whom were former customers of the plaintiff.
On these facts, the trial court concluded that the relationship between the parties was the ordinary one of employer and employee; that the defendant was not entrusted with any of the plaintiff's confidential communications and did not learn any peculiar secrets or gain any private information while he was in the plaintiff's employ; that there was nothing secret about the plaintiff's list of customers; that, in the absence of fraud or express contract, the defendant had a right to start his own business and could legally solicit business from his former employer's customers; and that judgment should be rendered for the defendant.
The plaintiff seeks to add to the finding certain facts which it claims are admitted or undisputed. The absence of direct contradiction does not make a fact admitted or undisputed within the meaning of our rule. Practice Book § 397(a); Greco v. Morcaldi, 145 Conn. 685, 687, 146 A.2d 589. Although there was evidence to support some of the facts claimed, it was solely within the province of the trial court to determine the credibility of that evidence. United Construction Corporation v. Beacon Construction Co., 147 Conn. 492, 495, 162 A.2d 707. The requested additions to the finding cannot be made.
The plaintiff has also assigned error in the court's conclusions, on the ground that the facts set forth in the finding do not support them. He *317 claims that the defendant was not entitled to solicit its customers for his rival business before the termination of his employment. The defendant, as an agent of the plaintiff, was a fiduciary with respect to matters within the scope of his agency. Taylor v. Hamden Hall School, Inc., 149 Conn. 545, 552, 182 A.2d 615; Santangelo v. Middlesex Theatre, Inc., 125 Conn. 572, 578, 7 A.2d 430; Restatement (Second), 1 Agency § 13. The very relationship implies that the principal has reposed some trust or confidence in the agent and that the agent or employee is obligated to exercise the utmost good faith, loyalty and honesty toward his principal or employer. 3 Am. Jur. 2d, Agency, § 199. In the absence of clear consent or waiver by the principal, an agent, during the term of the agency, is subject to a duty not to compete with the principal concerning the subject matter of the agency. 3 C.J.S., Agency, § 143; Restatement (Second), 2 Agency § 393. Upon termination of the agency, however, and in the absence of a restrictive agreement, the agent can properly compete with his principal in matters for which he had been employed. "Thus, before the end of his employment, he can properly purchase a rival business and upon termination of employment immediately compete. He is not, however, entitled to solicit customers for such rival business before the end of his employment... in direct competition with the employer's business." Restatement (Second), 2 Agency § 393, comment e. Knowledge acquired by an employee during his employment cannot be used for his own advantage to the injury of the employer during employment. Allen Mfg. Co. v. Loika, 145 Conn. 509, 514, 144 A.2d 306; Ritterpusch v. Lithographic Plate Service, Inc., 208 Md. 592, 604, 119 A.2d 392.
*318 The court found that the defendant solicited customers for his own business before his employment with the plaintiff was terminated. Such action was in direct competition with his employer and was contrary to the employer's interest. It was a betrayal of the employer's trust and confidence in the defendant. He is not entitled to the benefits resulting from this unlawful conduct, and he should account to the plaintiff for the profits received from any business done with former customers of the plaintiff who were solicited by him while he was in its employ. Moreover, the plaintiff is entitled to injunctive relief restraining the defendant from performing, either directly or indirectly, any service, in competition with the plaintiff, for any former customers of the plaintiff who were solicited by him prior to the termination of his employment.
The plaintiff also claims that the names of its customers constituted a trade secret and that the court erred in reaching a contrary conclusion. "A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound ... or a list of customers." Restatement, 4 Torts § 757, comment b; Allen Mfg. Co. v. Loika, supra, 516. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret. A trade secret is known only in the particular business in which it is used. It is not essential that knowledge of it be restricted solely to the proprietor of the business. He may, without losing his protection, communicate the secret to employees or to others *319 who are pledged to secrecy. Nevertheless, a substantial element of secrecy must exist, to the extent that there would be difficulty in acquiring the information except by the use of improper means. Some of the factors to be considered in determining whether given information is a trade secret are (1) the extent to which the information is known outside the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and to his competitors; (5) the amount of effort or money expended by the employer in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement, 4 Torts § 757, comment b.
Trade secrets are the property of the employer and cannot be used by the employee for his own benefit. The lack of any express agreement on the part of the employee not to disclose a trade secret is not significant. The law will import into every contract of employment a prohibition against the use of a trade secret by the employee for his own benefit, to the detriment of his employer, if the secret was acquired by the employee in the course of his employment. Allen Mfg. Co. v. Loika, supra, 514; 1 Nims, Unfair Competition and Trade-Marks (4th Ed.) § 150. A list of customers, if their trade and patronage have been secured by years of business effort and advertising and the expenditure of time and money, constitutes an important part of a business and is in the nature of a trade secret. It is the property of the employer and may not be used by the employee as his own property or to his *320 employer's prejudice. Town & Country House & Home Service, Inc. v. Newbery, 3 N.Y.2d 554, 558, 147 N.E.2d 724; People's Coat, Apron & Towel Supply Co. v. Light, 171 A.D. 671, 673, 157 N.Y.S. 15, aff'd, 224 N.Y. 727, 121 N.E. 886; California Intelligence Bureau v. Cunningham, 83 Cal. App. 2d 197, 203, 188 P.2d 303; 1 Nims, loc. cit.; 2 Callmann, Unfair Competition and Trade-Marks § 51.1; Ellis, Trade Secrets § 71. If in any particular business the list of customers is, because of some peculiarity of the business, in reality a trade secret and an employee has gained knowledge thereof as a matter of confidence, he will be restrained from using that knowledge against his employer. 1 Nims, op. cit. § 157. On the other hand, where the identity of the customers is readily ascertainable through ordinary business channels or through classified business or trade directories, the courts refuse to accord to the list the protection of a trade secret. Continental Car-Na-Var Corporation v. Moseley, 24 Cal. 2d 104, 108, 148 P.2d 9; Haut v. Rossbach, 128 N.J. Eq. 77, 78, 15 A.2d 227; Goldberg v. Goldberg, 205 A.D. 435, 438, 200 N.Y.S. 3; Boosing v. Dorman, 148 A.D. 824, 825, 133 N.Y.S. 910, aff'd, 210 N.Y. 529, 103 N.E. 1121.
The plaintiff brought this action in equity requesting, in its prayer for relief, an accounting of profits, an injunction and damages. If the list of customers was a trade secret, the plaintiff would be entitled, in addition to any other proper relief, to an injunction restraining the defendant from performing services for customers on the list. California Intelligence Bureau v. Cunningham, supra; 2 Callmann, op. cit. § 59.1; 2 Nims, op. cit. § 367. On the other hand, if the list of customers was not a *321 trade secret, the right to injunctive relief and damages would apply only to business done with customers solicited before the end of the employment. Thus, the measure and extent of the relief to which the plaintiff may be entitled depends on a proper determination of whether the plaintiff's list of customers was a trade secret. The court's conclusion that there was nothing secret about the plaintiff's list of customers is not supported by any subordinate facts in the finding. We are unable to determine what factors were considered by the court in reaching this conclusion. Without the necessary facts to support it, it cannot stand.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.
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201 F. Supp. 495 (1962)
Alfred L. RAGSDALE, Plaintiff,
v.
Robert WATSON, John H. Adametz and William I. Porter, a Partnership, d/b/a Doctors Watson, Adametz and Porter; Thomas M. Durham and Stuart B. McConkie, a Partnership, d/b/a Doctors Durham and McConkie; Associated Employers Insurance Company and Light Adjustment Company, Defendants.
No. 857.
United States District Court W. D. Arkansas, Hot Springs Division.
January 24, 1962.
*496 C. A. Stanfield, Hot Springs, Ark., for plaintiff.
Wright, Lindsey, Jennings, Lester & Shults, Little Rock, Ark., Wootton, Land & Matthews, Hot Springs, Ark., for defendants.
JOHN E. MILLER, Chief Judge.
On July 14, 1961, the plaintiff filed his complaint seeking to recover large sums of money against the various defendants.
On August 5, 1961, the court granted the individual defendants additional time to August 28, 1961, in which to answer or otherwise plead.
On August 9, 1961, the court sustained the motion of defendants Associated Employers Insurance Company and Light Adjustment Company for a more definite statement and, in doing so, wrote the attorneys for all the parties advising them of the reasons which prompted the court to grant the motion for a more definite statement. In the same order the court directed that the plaintiff amend his complaint in accordance with the motion and the order of the court. On the same date the court further extended the time of the individual defendants to plead until the plaintiff had complied with the order for a more definite statement.
The plaintiff failed to comply with the order of the court of August 9, 1961, and on September 29, 1961, the court by order extended for thirty days the time of the plaintiff in which to file his amended complaint. On November 16, 1961, the plaintiff had failed, notwithstanding the additional time allowed by the court, to file an amendment to his complaint or a substitute complaint, and on that date all the defendants filed a motion to dismiss. Upon the filing of the motion the court advised all the attorneys that the case would not be dismissed at that time, but that the plaintiff would be given additional time in which to comply with the order of the court. Finally, on November 29, 1961, the plaintiff filed what he has designated as "Amendment Number One to Complaint" by substituting for the original complaint a new complaint.
On December 11, 1961, defendants Associated Employers Insurance Company and Light Adjustment Company filed their motion to dismiss pursuant to Rule 12(b) (6), Fed.R.Civ.P., 28 U.S.C.A., "failure to state a claim upon which relief can be granted."
On December 13, 1961, the individual defendants filed their motion to dismiss upon the same grounds and other grounds not contained in the motion of Associated Employers Insurance Company and the Light Adjustment Company.
The court requested the attorneys for all the parties to submit briefs in support of the various contentions. The briefs have been received, and the motions of the defendants are now ready for disposition.
In the consideration of a motion to dismiss for failure to state a claim upon which relief can be granted, the court in United States v. Farmers Mutual Insurance Association of Kiron, Iowa, 288 F.2d 560 (8 Cir. 1961), at page 562 stated:
"A motion to dismiss a complaint should not be granted unless `it appears *497 to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.' Thomason v. Hospital T. V. Rentals, Inc., 8 Cir., 272 F.2d 263, 264; Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 2 L. Ed. 2d 80; Lada v. Wilkie, 8 Cir., 250 F.2d 211."
In the case of Dutton v. Cities Service Defense Corp., 197 F.2d 458 (8 Cir. 1952), the court stated substantially the same proposition at page 459:
"This Court has repeatedly pointed out the hazards involved in attempting to terminate litigation by dismissing a complaint for insufficiency of statement. To justify such a dismissal, it must appear as a matter of law that under no state of facts which could be proved in support of the claims pleaded would the plaintiff be entitled to any relief. See Woods v. Hillcrest Terrace Corporation, 8 Cir., 170 F.2d 980, 984, and cases cited. In the case of McComb v. Johnson, 8 Cir., 174 F.2d 833, 834, this Court said:
"`* * * We have twice before had occasion to point out the impropriety of deciding questions of coverage under the Fair Labor Standards Act upon motions to dismiss a complaint for failure to state a claim upon which relief could be granted. Musteen v. Johnson, 8 Cir., 133 F.2d 106, 108; Stratton v. Farmers Produce Co., Inc., 8 Cir., 134 F.2d 825, 827. The futility of attempting to terminate a lawsuit by granting such a motion, unless it presents a simple, definite, clear-cut issue of law, has been pointed out by this Court in many cases. * * *'"
See, also, Michael v. St. Paul Mercury Indemnity Co., 92 F. Supp. 140 (W.D.Ark. 1950).
Therefore, the motions should not be sustained unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim as alleged.
The plaintiff is a citizen and resident of the State of Texas. The individual defendants Watson, Adametz and Porter are citizens of Arkansas and reside in the Eastern District. They are engaged in the practice of neurological surgery. The defendants Durham and McConkie are citizens of Arkansas and residents of the Western District. They are engaged in the practice of orthopedic surgery.
The complaint does not allege the citizenship of the defendant Associated Employers Insurance Company, but the defendant Light Adjustment Company is a corporation incorporated under the laws of Arkansas, and was the adjuster for the defendant Associated Employers Insurance Company of the claim submitted by plaintiff for benefits under the Workmen's Compensation laws of Arkansas.
In connection with the citizenship of the defendant Associated Employers Insurance Company, the individual defendants in their motion to dismiss have alleged that it is a citizen of the State of Texas, and therefore they ask that the case be dismissed for the lack of diversity of citizenship, but the attorneys representing the said defendant have not included in their motion to dismiss any claim that the said defendant is a citizen of the State of Texas and that diversity does not exist. The court realizes that it is its duty to inquire into the jurisdiction, but in view of the conclusion that the court has reached upon other grounds and because of the state of the record, the court is not at this time inquiring into the citizenship of said defendant or whether its presence as a defendant destroyed diversity.
In the complaint the plaintiff has alleged that on or about March 31, 1959, while acting within the scope of his employment by the Kimbell Grocery Company, he sustained an injury, for which he was entitled to compensation in the sum of $12,500.00 and for medical, surgical and hospital expenses in the sum of $10,000.00 from the employer and its *498 workmen's compensation insurance carrier. The claim was filed and the defendant Employers Insurance Company, as the insurer of the employer, paid him compensation for 13 weeks in the sum of $455.00; that thereafter it refused to make further payments and wrongfully withheld from the plaintiff payments to which he was entitled under the Workmen's Compensation Law of Arkansas in the sum of $22,045.00.
The plaintiff applied to the Workmen's Compensation Commission for an order requiring the payment of the additional compensation and benefits, but the Commission found that he (plaintiff) was not entitled to additional compensation and denied his claim. That the finding was based, "inter alia," on statements of the defendants McConkie and Watson which falsely and fraudulently indicated that the plaintiff was not disabled. That such statements were in fact false and misleading and deliberately designed to and did deceive the Commission and defraud the plaintiff; that the statement of the defendant Watson was false and misleading and either deliberately designed to defraud the plaintiff, or was made after an inadequate and negligent examination, and constituted a fraud against the plaintiff by stating that the plaintiff was not injured.
Attached to the motion of the individual defendants is a copy of the opinion of the Workmen's Compensation Commission filed June 20, 1961, following the hearing referred to by plaintiff. The plaintiff does not deny or controvert in any manner that the copy attached to said motion is a true and correct copy of the order of the Commission. The order is as follows:
"BEFORE THE ARKANSAS WORKMEN'S
COMPENSATION COMMISSION
"CLAIM NO. A911234
"ALFRED L. RAGSDALE,
EMPLOYEE CLAIMANT
"KIMBELL GROCERY
COMPANY, EMPLOYER
RESPONDENT
"ASSOCIATED EMPLOYERS
INSURANCE
COMPANY, INSURANCE
CARRIER RESPONDENT
"OPINION FILED July 20, 1961
Hearing before the FULL COMMISSION, upon review, at Little Rock, Pulaski County, Arkansas.
"Claimant represented by MR. C. A. STANFIELD, Attorney, Hot Springs, Arkansas.
"Respondents represented by MR. WINSLOW DRUMMOND, Attorney, Little Rock, Arkansas.
"OPINION
"This case is now before the Full Commission for review as a result of claimant's timely appeal from the opinion filed April 14, 1961, by the referee, wherein a finding was made that the claimant failed to meet the burden of proof necessary to establish that he is entitled to any compensation or medical treatment after June 30, 1959.
"A study of the record and the referee's opinion shows that the statement of the case therein is a fair and accurate résumé of the case, and the Commission adopts same as its own. We would add only that on appeal additional evidence was offered in the deposition of Dr. Stuart B. McConkie given June 6, 1961, the testimony of two co-workers of the claimant, Billy Nobles and Sherman Allen, the testimony of Dr. R. V. Bennett and further testimony of the claimant, himself.
"The main questions to be decided on this appeal are whether the claimant's healing period terminated on June 30, 1959, and whether claimant is entitled to further compensation and medical treatment after this date. The claimant's alleged injury took place on March 31, 1959, when, in lifting a wooden pallet, he injured his left shoulder. The claimant has been seen and examined during the course of this claim by Dr. Jack Wright, Dr. Stuart B. McConkie, Dr. Robert Watson, Dr. Vernon Simmons, Dr. John M. Hundley and Dr. R. V. Bennett, as well as certain staff physicians at the Veterans *499 Administration Hospital, Little Rock, Arkansas. It was not until an examination of the claimant on July 20, 1960, by Dr. R. V. Bennett, that any history of an injury to the neck of the claimant was elicited. This injury allegedly took place on March 23, 1959. This history was not given other examining doctors in the case.
"After viewing all of the evidence in this claim in a light most favorable to the claimant, the Commission is of the opinion that claimant has failed to meet the burden of proof to establish that he is entitled to any compensation or medical treatment after June 30, 1959, arising from the alleged injuries of March 23, 1959, and March 31, 1959.
"We, therefore, find that the referee's opinion of April 14, 1961, is correct and that this claim should be denied. "IT IS SO ORDERED.
"/s/ L. D. Blair
"L. D. BLAIR, Chairman
"/s/ O. W. Holmes
"O. W. HOLMES, Commissioner
"/s/ S. V. Zinn, Sr.
"S. V. ZINN, SR., Commissioner"
Ark.Stat.Ann., Sec. 81-1304 (1960 Replacement), provides:
"The rights and remedies herein granted to an employee subject to the provisions of this act [§§ 81-1301 81-1349], on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next kin, or anyone otherwise entitled to recover damages from such employer on account of such injury or death * * *."
The employer, Kimbell Grocery Company, had obtained workmen's compensation insurance, and in Shultz v. Lion Oil Company, 106 F. Supp. 119 (W.D.Ark. 1952), the court, after reviewing the workmen's compensation statute and the decisions of the Supreme Court of Arkansas as therein cited, held that a plaintiff's remedy under the Arkansas Workmen's Compensation Law was exclusive, and that the Arkansas courts had no jurisdiction of such claim except as provided in the Act and that the federal courts had no jurisdiction of an action by an employee against his employer to recover damages other than compensation as provided by the Act.
In the Shultz case the court cited Kimpel v. Garland Anthony Lumber Co., 216 Ark. 788-791, 227 S.W.2d 932, where the court held that the remedy given by the Compensation Act is exclusive as to one covered by it, and an action for damages based on negligence of an employer was properly dismissed.
In Hagger v. Wortz Biscuit Company, 210 Ark. 318, 196 S.W.2d 1, the court, after referring to the case of Odom v. Arkansas Pipe & Scrap Mat'l Co., 208 Ark. 678, 187 S.W.2d 320, and Sec. 81-1304, supra, at page 325 of 210 Ark., at page 4 of 196 S.W.2d said:
"`The lower court properly dismissed appellant's complaint. Under the provisions of the Workmen's Compensation Law the liability therein created is the only liability against the employer that may arise out of the death or injury of an employee subject to the Act.'"
In Huffstettler v. Lion Oil Company, (W.D.Ark.1953), 110 F. Supp. 222, aff'd 208 F.2d 549, this court considered the rights of an employee to maintain a suit for negligence against his employer, and reached the same conclusion as above stated.
Thus, any claim that the plaintiff has against his employer or its workmen's compensation insurance carrier or the agent of the carrier must be determined by a proceeding before the Workmen's Compensation Commission.
The individual defendants were not employers of the plaintiff. None of them caused either directly or indirectly the injury which the plaintiff claims that he received while employed by the Kimbell Grocery Company.
Ark.Stat.Ann., Sec. 81-1340 (1960 Replacement), provides:
"(1). The making of a claim for compensation against any employer *500 or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them, join in such action they shall be entitled to a first lien upon two-thirds [ 2/3 ] of the net proceeds recovered in such action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents."
Ark.Stat.Ann., Sec. 81-1325(b) (1960 Replacement), provides:
"A compensation order or award of the full Commission shall become final unless either party to the dispute shall, within thirty (30) days from the receipt by him of the order or award, petition in writing for an appeal to the circuit court of the county in which the accident occurred * * *. Such appeal to the circuit court may be taken by filing in the office of the Commission, within thirty (30) days from the date of the receipt of the order or award of the full Commission, a notice of appeal, whereupon the Commission under its certificate shall send to the court all pertinent documents and papers, together with a transcript of evidence, the findings and orders, which shall become the record of the cause. Upon the appeal to the circuit court no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the Commission, within its powers, shall be conclusive and binding upon said court. The court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
"1. That the Commission acted without or in excess of its powers.
"2. That the order or award was procured by fraud.
"3. That the facts found by the Commission do not support the order or award.
"4. That there was not sufficient competent evidence in the record to warrant the making of the order or award."
The plaintiff did not appeal from the order of the full Commission which found that he was not entitled to receive compensation after June 30, 1959.
Therefore, the claim of plaintiff for compensation and for the recovery of medical and hospital expenses has been adjudicated by the tribunal specially constituted under the Constitution of Arkansas for that purpose, and the only question remaining is whether the additional allegations of the complaint state a claim upon which relief can be granted by this court. In this connection the plaintiff has made the following allegations in numbered paragraphs III and IV of the complaint:
"III.
"That the defendants, Associated Employers Insurance Company, through its agent Light Adjustment Company, Stuart B. McConkie and Robert Watson entered into a conspiracy to defraud plaintiff by having plaintiff examined by Stuart B. McConkie and Robert Watson and subsequently secure from the said Stuart B. McConkie, as a specialist in orthopedic surgery, and from Robert Watson, as a specialist in neurological surgery, false, incomplete and misleading reports and evidence as to plaintiff's physical condition, which reports and evidence were to be presented to the Workmen's Compensation Commission, with the design and intent that plaintiff would be denied the compensation to which he was entitled and the defendant, Associated Employers Insurance Company would avoid *501 its legal duty to pay plaintiff as required by law; that as a result of such conspiracy such examinations and reports were issued and presented to the Commission as set out above, and were considered as evidence by the Commission, and did result in the denial of plaintiff's claim to his actual damage in the sum of $22,045.00 for which he ought to have judgment; that for such fraudulent acts and transaction plaintiff should be awarded special or exemplary damage compensation in the sum of $100,000.00.
"IV.
"Further, for his separate complaint against the defendants, Doctors Thomas M. Durham and Stuart B. McConkie, plaintiff states and alleges:
"That after treatment by another physician who was unable to determine the cause of the pain plaintiff continuously suffered, plaintiff went to Doctors Durham and McConkie as a patient and was accepted by them as such; that these defendants discovered by x-ray examination that there was a partial dislocation of a vertebrae and that two discs were herniated, ruptured, or narrowed in his cervical spine; that these defendants knew that the condition they so discovered might have caused the pain he then complained of and explained to them; that notwithstanding the fact that plaintiff as their patient was entitled to the best treatment they as experts in their field of orthopedic surgery could afford him, plaintiff was discharged from care by them without being advised as to the abnormal condition they had discovered in his cervical spine or given any treatment therefor; that these defendants, at plaintiff's request, reported their examination and treatment to the insurance carrier and the Workmen's Compensation Commission; that in said reports they omitted information and deliberately concealed the fact that they had discovered the abnormalities in plaintiff's cervical spine. That as a result plaintiff was denied the treatment to which he was entitled; denied the compensation and medical expenses to which he was entitled; and, continued to suffer great pain, all to his actual damage in the sum of $40,000.00. That for the wrongful acts herein complained of plaintiff ought to recover from the defendants, Doctors Durham and McConkie compensation for that damage in the sum of $40,000.00 and he should be awarded judgment against them in the way of special or exemplary damages in the sum of $100,000.00."
In other words, assuming that the truth of the allegations might be established by the evidence, can the plaintiff maintain this action for damages in a separate proceeding at law arising from the above alleged civil conspiracy to defraud him by the intentional submission of the false and misleading medical reports by the defendants as evidence in the proceeding before the Workmen's Compensation Commission?
A civil conspiracy is defined as a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means. 15 C.J.S. Conspiracy Sec. 1; Southwestern Pub. Co. v. Ney, 227 Ark. 852, 302 S.W.2d 538 (1957).
11 Am.Jur., Conspiracy, Sec. 45, characterizes the civil liability for conspiracy as follows, beginning at page 577:
"Accurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy, rather than by the conspiracy itself; and unless something is actually done by one or more of the conspirators which results in damage, no civil action lies against anyone. The gist of the civil action for conspiracy is the act or acts committed in pursuance *502 thereof the damage not the conspiracy or the combination. The combination may be of no consequence except as bearing upon rules of evidence or the persons liable. The combination must be shown, however, if, because of a dishonest combination to accomplish some wrongful act, the conduct complained of becomes actionable. The essential elements, whether of a criminal or `civil' conspiracy, are the same, except that to sustain a civil action for conspiracy special damages must be proved.
The case of Felts v. Paradise, 178 Tenn. 421, 158 S.W.2d 727, 139 A.L.R. 467 (1942), restates the American Jurisprudence characterization as follows, at page 468 of 139 A.L.R.:
"In Schaub v. O'Ferrall, 116 Md. 131, 81 A. 789, 792, 39 L.R.A.,N.S., 416, Ann.Cas.1913C, 799, 802, the court quoted from its former decision in Kimball v. Harman, 34 Md. 407, 410, 6 Am.Rep. 340, as follows: `It is clear, therefore, as well upon the authority of other cases as that of Savile v. Roberts, 1 Ld.Raym. [Eng] 374, that an act which, if done by one alone, constitutes no ground of an action on the case, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several.'"
Since the civil conspiracy to defraud alleged in this action is based on the overt act of perjured testimony, the next question is whether the perjured testimony itself on the part of an individual is subject to a civil suit. The rule as to civil liability for perjury is stated as follows in 41 Am.Jur., Perjury, beginning at page 44:
"Sec. 81. Generally. Ordinarily, aside from defamation and malicious prosecution, the courts will not recognize any injury from false testimony upon which a civil action for damages can be maintained. Thus, it has been held that false testimony in a criminal action which results in a conviction of the plaintiff does not furnish the basis of a civil suit to recover damages, and that no action for damages lies for false testimony in a civil suit whereby the plaintiff fails to recover a judgment, or a judgment is rendered against him. * * * In accordance with these principles, therefore, no action lies for false testimony by reason of which the plaintiff recovers a smaller amount of damages than the amount to which he is entitled.
"On the other hand, it is apparently well settled that when the giving of false testimony is only a part of the carrying out of a scheme to defraud the plaintiff by means of the combination, fraud, and deceit of the defendants, an action will lie for damages.
"Sec. 82. Subornation of False Testimony. Ordinarily, the fact that a defendant has suborned a witness to give false testimony in a civil suit, whereby the plaintiff has failed to recover a judgment, or a judgment has been rendered against him, does not constitute ground for the recovery of damages."
In accord: Owens v. Mench, (1952), 81 Pa. D. & Co.R. 314; 54 A.L.R. 2d 1317 (testimony of a doctor at a hearing for application for workmen's compensation).
This leads us to the general rule which is stated in 15 C.J.S. Conspiracy § 16, as follows:
"Conspiracy to commit perjury. Since an action at law does not lie to recover damages for perjury committed in a former case in which plaintiff might have been interested, an action for damages for conspiracy to commit perjury and for the giving of false testimony cannot ordinarily be maintained."
A refinement of this rule appears in 11 Am.Jur., Conspiracy, Sec. 52, which states that no action lies as for a conspiracy for procuring or giving false testimony so long as the judgment procured thereby remains in force and effect.
*503 In the annotation appearing in 139 A.L.R., the annotator, beginning at page 469, states the rationale for the rule by quoting from some of the annotated cases. From the opinion in Kessler v. Townsley (1938), 132 Fla. 744, 182 So. 232, the court quoted as follows:
"`Public policy, and the safe administration of justice, require that circuit judges, witnesses, and parties to pending legal controversies, be privileged against any restraint sought to be imposed upon them by suits for damages brought against them for alleged conspiracies charged against them concerning the subject-matter of pending litigation, the effect of the trial of which actions for conspiracy will simply amount to a collateral retrial of the plaintiff's pretended rights which it is alleged were intended, by means of the asserted conspiracy, to be defeated.'"
and from Dunlap v. Glidden (1850), 31 Me. 435, 52 Am.Dec. 625, A.L.R., quoted the court as follows:
"`If the judgment was obtained, as is contended, by fraud and perjury, the plaintiff has ample remedy by law. The court which rendered the judgment upon proof of these allegations would be bound to grant a new trial, so that upon a further investigation justice might be done. The witnesses, if guilty, might be indicted for perjury, and so might all those be indicted who had unlawfully conspired together to deprive the plaintiff of his rights, and their conviction would afford the most convincing evidence that a review of the action should take place.'"
In accord: Levy v. Hayward, 101 U.S. App.D.C. 232, 248 F.2d 152 (1957); and Robinson v. Missouri Pacific Transportation Co., 85 F. Supp. 235 (W.D.Ark.1949).
However, it has been held that where the giving of false testimony is only a part of the carrying out of a scheme to defraud the plaintiff by means of the combination fraud and deceit of the defendants, an action will lie. Morgan v. Graham, 228 F.2d 625, 54 A.L.R. 2d 1290 (10 Cir., 1956); Robinson v. Missouri Pacific Transportation Co., supra; 15 C.J.S. Conspiracy § 16, p. 1027.
The plaintiff also seeks to recover punitive damages based on two general allegations: (1) that all of the named defendants had entered into a civil conspiracy to defraud him by means of perjured medical testimony before the Workmen's Compensation Commission, and (2) that Doctors Durham and McConkie either individually or in a 2-man civil conspiracy acted to defraud the plaintiff in the same manner. The plaintiff has alleged no other overt acts on the part of defendants constituting a conspiracy to defraud as an over-all scheme on their part other than by their alleged acts of giving false testimony by submission of medical reports alone for which no independent action in tort can be maintained.
If the testimony and reports of the individual physician defendants were untrue, the plaintiff had an opportunity to attack the testimony in the proceeding before the Commission or on an appeal to the state circuit court, and upon a proper showing in either tribunal, the alleged wrong could have been righted, and if the plaintiff was entitled to recover additional compensation, medical and hospital benefits, he could and was required by the law to make that showing in the Commission hearing or in the state circuit court to which he had access.
The court is of the opinion, as a matter of law, that under no state of facts which could be proved in support of the claims pleaded herein would the plaintiff be entitled to any relief. Dutton v. Cities Service Defense Corp., supra, and United States v. Farmers Mutual Ins. Asso. of Kiron, Iowa, supra.
Therefore, an order is being entered today sustaining defendants' motions to dismiss and dismissing the plaintiff's complaint and amendment thereto.
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521 U.S. 979 (1997)
FOREMAN et al.
v.
DALLAS COUNTY, TEXAS,
ET AL.
No. 96-987.
United States Supreme Court.
Decided June 27, 1997.[*]
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
*980 Per Curiam.
Texas by statute authorizes counties to appoint election judges, one for each precinct, who supervise voting at the polls on election days. In 1983 and several times thereafter, Dallas County changed its procedures for selecting these officials. Each of the new methods used party-affiliation formulas of one sort or another. After the most recent change in 1996, appellants sued the county and others in the United States District Court, claiming that § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S. C. § 1973c, required that the changes be precleared.
A three-judge court held that preclearance was not required because the county was simply exercising, under the state statute, its "discretion to adjust [the procedure for appointing election judges] according to party power." App. to Juris. Statement 4a. The court apparently concluded that this "discretionary" use of political power meant that the various methods for selecting election judges were not covered changes under § 5. The court also concluded that the Justice Department's preclearance of a 1985 submission from the Statethe recodification of its entire election codeoperated to preclear the county's use of partisan considerations in selecting election judges. The court denied injunctive relief, and later dismissed appellants' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellants have brought both of these rulings here.
We believe that the decision of the District Court is inconsistent with our precedents. First, in NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 178 (1985), we held that even "an administrative effort to comply with a statute that had already received clearance" may require separate preclearance, because § 5 "reaches informal as well as formal changes." Thus, the fact that the county here was exercising its "discretion" pursuant to a state statute does not shield its actions from § 5. The question is simply whether the county, by its actions, whether taken pursuant to a statute *981 or not, "enact[ed] or [sought] to administer any . . . standard, practice, or procedure with respect to voting different from" the one in place on November 1, 1972. § 5. The fact that the county's new procedures used political party affiliation as the selection criterion does not mean that the methods were exempt from preclearance.
Second, the State's 1985 submission (the recodification and a 30-page summary of changes to the old law) indicated that the only change being made to the statute concerning election judges was a change to "the beginning date and duration of [their] appointment." Thus, neither the recodified statute nor the State's explanations said anything about the use of specific, partisan-affiliation methods for selecting election judges. This submission was clearly insufficient under our precedents to put the Justice Department on notice that the State was seeking preclearance of the use of partisan affiliations in selecting election judges. See, e. g., Young v. Fordice, 520 U.S. 273, 286-287 (1997); Lopez v. Monterey County, 519 U.S. 9, 15 (1996); Clark v. Roemer, 500 U.S. 646, 658-659 (1991).
Because the parties agree that the record is silent as to the procedure used by Dallas County for appointing election judges as of November 1, 1972, the date on which Texas became a covered jurisdiction under the Voting Rights Act, we cannot make a final determination here as to whether preclearance is in fact required. We therefore vacate the judgment of the District Court in No. 96-1389, dismiss the appeal from the District Court's interlocutory judgment in No. 96 987, see Shaffer v. Carter, 252 U.S. 37, 44 (1920), and remand the cases for further proceedings.
It is so ordered.
NOTES
[*] Together with No. 96-1389, Foreman et al. v. Dallas County, Texas, et al., also on appeal from the same court.
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231 Md. 154 (1963)
189 A.2d 98
BUSHEY ET AL.
v.
STATE ROADS COMMISSION OF MARYLAND
[No. 196, September Term, 1962.]
Court of Appeals of Maryland.
Decided March 20, 1963.
The cause was argued before BRUNE, C.J., and HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.
William B. Dulany, for appellants.
J. Thomas Nissel, Special Attorney, with whom were Thomas B. Finan, Attorney General, Joseph D. Buscher, Special Assistant Attorney General, and E.O. Weant, Jr., Special Attorney, Westminster, Md., on the brief, for appellee.
PRESCOTT, J., delivered the opinion of the Court.
The Circuit Court for Carroll County dismissed an appeal to that court by property owners from an award of the Board of Property Review (Board), on the ground that the appeal had not been taken within the statutory period of thirty days after the award. Code (1957), Article 89B, § 18; Volz v. State Roads Commission, 221 Md. 209, 214, 156 A.2d 671.
The appellant poses two questions: (1) "Did appellants' verbal advices of objection to the award of the Board of Property Review to a member thereof and to appellee within 30 days, meet the statutory requirements so as to entitle them to have their lands condemned and valued in the proper court under the normal proceedings for eminent domain?"; and (2), Is the appellee precluded from denying appellants a condemnation suit by virtue "of the actions and inactions" of appellee and the Board, causing appellants to believe that action to assure an ordinary condemnation proceeding had been taken?
*156 The two questions may be considered together. Appellants are the owners of property in Carroll County through which appellee desired to construct a highway. On June 22, 1961, appellee filed its plats or maps, and deposited with the clerk of court its check for the benefit of appellants in the amount of $4,610 for the land to be taken. Appellants did not agree with the figure of $4,610 as being the fair value of the property; whereupon the matter, in accordance with the statute, was referred to the Board. After hearing before said Board, an award of $6,500 was made by it, on August 16, 1961. On September 5, 1961, Richard L. Schindel, Senior Right of Way Agent of the appellee, called upon appellants and informed them that appellee had accepted said award. They told Schindel they were dissatisfied with the award. Schindel then, according to appellants, told them to send a letter of objection to appellee's Baltimore office, without specifying any time within which it should be sent. Schindel, on the other hand, testified that he informed the appellants that they had to appeal in writing within 30 days after the award; and C. Rogers Hall, Chairman of the Board of Property Review, testified that he informed the appellants of their right to appeal within 30 days of the award.
On September 22, 1961, more than 30 days after August 16, appellants addressed a letter to appellee's Baltimore office stating they were dissatisfied with the award. On October 25, Schindel again called upon appellants and informed them their appeal had not been taken within the time prescribed by law. In March of 1962, appellants filed a "petition and order for appeal" in the Circuit Court for Carroll County, which, as noted above, was dismissed, and this appeal followed.
This states all of the pertinent facts except appellants claim that John S. Bushey, one of the appellants, contacted a certain Mr. Brett, a member of the Board, and told him that he (Bushey) was dissatisfied with the award. Then, without stating anything that Brett said, Bushey testified that he concluded, from this conversation, that the appellee would proceed with the usual condemnation proceedings. And one of the appellants testified that after appellants had been notified *157 their appeal had been taken too late, he telephoned a member of the State Roads Commission and asked him "if he could take care of the case for us and he told us [sic] that he could."
In the Volz case, supra, the course to be followed under Article 89B, § 18 by a dissatisfied property owner in order to effectuate his "appeal" from the award of the review board was clearly set forth. (For the present procedure, see Rule U20.) He should file, within 30 days, his notice of "appeal" in the appropriate court in whose jurisdiction the property is situated. And "he must give notice [in writing] to the commission and the commission must thereupon proceed to file its petition [for condemnation], and the primary function of the notice seems to be to set the machinery in motion for filing of the petition." 221 Md. at page 215.
The appellants concede they failed to comply with the provisions of the statute, and it is difficult to set forth with certainty their argument offered as an excuse for failing to do so. They seem to think that there was a duty upon the Board and the appellee to apprise them of the requirements for them to take an "appeal." If we assume that to be so, both Schindel and Rogers Hall testified, flatly, that they notified appellants the "appeal" must be taken within 30 days, and the trial judge, apparently, adopted this version of the matter.
The crux of their argument is covered in the following passage in their brief: "The fact that verbal notice was given within 30 days, coupled by the written notice a few days beyond the period, in view of the facts outlined above and of the informality of the entire proceedings, presents a situation where the court should have exercised a reasonable discretion and allowed the appeal." This argument is patently faulty. First, it overlooks completely the requirement to "appeal" to the court by assuming the only notice required was to the appellee. Further, it assumes that where an appeal is permitted by law, but is required to be noted or filed within a certain time, the court has a "reasonable discretion" to allow an appeal although not filed within the specified time. The courts have no such power, unless given the same by statute, rule of court, or constitutional provision.
*158 As the "appeal" was not taken within the time prescribed by the statute, the trial judge was correct in dismissing it. Kloze v. Provident Bank, 220 Md. 469, 154 A.2d 711, and cases therein cited.
The appellant attempts to raise one other point, but an examination of the record fails to show that it was raised or decided below; hence it is not before us for consideration. Rule 885.
Order affirmed, with costs.
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654 S.W.2d 488 (1983)
Eloy RUIZ, Appellant,
v.
STATE of Texas, Appellee.
No. 13-81-055-CR.
Court of Appeals of Texas, Corpus Christi.
April 14, 1983.
Rehearing Denied May 12, 1983.
*489 John Montalvo, Montalvo & Mendez, Corpus Christi, for appellant.
Grant Jones, Dist. Atty., Corpus Christi, for appellee.
Before NYE, C.J., and YOUNG and KENNEDY, JJ.
OPINION
NYE, Chief Justice.
This is an appeal from a conviction of the offense of burglary of a habitation with intent to commit theft. Tex.Penal Code Ann. § 30.02(a)(1) (Vernon 1974). The jury which convicted the appellant assessed his punishment at 30 years confinement in the Texas Department of Corrections. Appellant brings four grounds of error, including a challenge to the sufficiency of the evidence *490 to show the required intent to commit theft. By pro se brief, appellant adds a fifth ground of error which charges that the indictment is insufficient to charge an offense. Because the appellant challenges the sufficiency of the evidence, a summary of the facts adduced at the trial will be helpful.
Early in the morning of January 10, 1979, Mrs. Maria Ramon of 4022 Ramsey, Corpus Christi, was awakened in her home by noises coming from her front door. She became frightened, telephoned her daughter and then locked herself in her bathroom. Mrs. Ramon testified that she had not given the appellant permission to enter her house that night. A short time later, the police arrived and found the front door of the Ramon house standing open, a window next to the front door broken with its screen cut. An automobile later identified as belonging to the appellant was parked in front of the house with its engine running. The police found the appellant hiding in a bedroom closet inside the Ramon house. They arrested him. In appellant's car, the police found a coin purse which Ramon identified as belonging to her and as having been taken from the house that night. Also found in appellant's automobile were several items identified as having been stolen from a nearby neighborhood bar which was also burglarized that evening, as well as numerous items identified as being taken in the January 9, 1980, burglary of the home of Mr. Raymond Joseph Reaves, also of Corpus Christi.
Appellant contends that the State did not prove beyond a reasonable doubt that appellant had the required intent to commit theft. Tex.Penal Code Ann. § 30.02 (Vernon 1974). In determining the sufficiency of the evidence to uphold this conviction, we must apply the general rule that we view the evidence in the light most favorable to the verdict. Darrington v. State, 623 S.W.2d 414 (Tex.Cr.App.1981); Vaughn v. State, 607 S.W.2d 914 (Tex.Cr. App.1980). This being a jury-tried case, the jury was the sole judge of the weight and credibility of the evidence, and could accept or reject any part or all of the testimony, including that of the defendant. Johnson v. State, 571 S.W.2d 170 (Tex.Cr.App.1978).
At the trial, the appellant testified that he did not intend to commit a theft. He said that he thought he had entered his cousin's house. The appellant admitted taking the coin purse, but stated that he thought it belonged to his cousin, and that he did not think of it as stealing.
The evidence of the method of entry into the Ramon home, the fact that appellant attempted to elude the police by hiding in the closet, the fact that he took Ramon's purse, and the evidence of appellant's possession of items taken in other recent burglaries are more than sufficient to allow the jury to infer the required intent. Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to support the conviction.
Next, the appellant alleges the trial court erred in overruling appellant's motion for a second psychiatric examination. Prior to appellant's trial in this cause, appellant raised the issue of his competency to stand trial. The trial court appointed a psychiatrist to examine the appellant and report his findings, and scheduled a hearing on the issue. Tex.Code Crim.Pro.Ann. art. 46.02 §§ 3 & 4 (Vernon 1979). Appellant now claims that the psychiatrist's report did not comply with the Code of Criminal Procedure. Article 46.02, section 3(d) reads:
"A written report of the [psychiatrist's] examination shall be submitted to the court .... The report shall include a description of the procedures used in the examination, the examiner's observations and findings pertaining to the defendant's competency to stand trial, and recommended treatment."
We have examined the psychiatrist's report and find it fully in compliance with the Code of Criminal Procedure. This ground of error is wholly without merit and is overruled.
The appellant complains that the trial court erred in "allowing the State to improperly *491 identify appellant in court." The appellant cites two places in the record where alleged improper "identification" was allowed. First, we note that the record reflects no objection to either of these incidents. Since appellant failed to object at trial, there is nothing presented to us for review. See Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980); Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Thompson v. State, 537 S.W.2d 732 (Tex.Cr.App. 1976).
Second, the record discloses that the so-called "identifications" complained of were not identifications at all. In both instances, the prosecutor, in the course of examining a burglary victim, pointed out the appellant and solicited from the witness the statement that he or she had not given the appellant permission to enter his or her home. Such testimony did not identify the appellant as the perpetrator of a crime, but was relevant to establish the element of lack of consent. This ground of error is overruled.
Appellant claims the trial court erred in allowing the State to present evidence over appellant's objection as to extraneous offenses. When intent is an issue, evidence of extraneous offenses which tend to show intent are admissible. Crawley v. State, 513 S.W.2d 62, 64 (Tex.Crim.App. 1974). Under the indictment in the present case, intent to commit theft was an element of the State's case. Tex.Penal Code Ann. § 30.02(a)(1) (Vernon 1974). Appellant raised the issue of intent when he testified in his own behalf to the effect that he had mistakenly entered the wrong house. Only after this testimony was offered did the State introduce the evidence of the other burglaries. The admission of such evidence was not error.
Finally, we come to the ground of error raised by appellant's pro se brief. In this ground, appellant charges that the indictment is fundamentally defective in that it fails to allege all the necessary elements of the offense charged. See Daniels v. State, 573 S.W.2d 21 (Tex.Cr.App.1978).
The material portion of the indictment charges that the appellant
"... did then and there with the intent to commit theft, enter his person into a building used as a habitation that was under the actual care, custody, and control of Maria Ramon without the consent of Maria Ramon...."
Tex.Penal Code Ann. § 30.02 (Vernon 1974) provides, in part:
"(a) a person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; ..."
First, appellant argues that the indictment fails to allege the identity of the owner of the building in question. The Penal Code definition of "owner" includes a person who has possession of the property. Tex.Penal Code Ann. § 1.07(a)(24) (Vernon 1974). "Possession" means actual care, custody, control, or management. Tex.Penal Code Ann. § 1.07(a)(28) (Vernon 1974). Using these definitions together, one can readily see that the indictment quoted above identifies Maria Ramon as the owner of the building.
Appellant's second argument is that the indictment is defective because it fails to allege that appellant entered the habitation without the effective consent of the owner. The adjective "effective" is restrictive in its modification of the noun "consent." Proof that appellant entered without "consent" by necessity constitutes proof that the entry was without "effective consent." Therefore, the omission of the word "effective" from the indictment did not decrease the State's burden of proof.
An indictment need not use the exact words of the statute to describe an offense as long as there is no material difference between the statute's words and those of the indictment. Rhodes v. State, 624 S.W.2d 770 (Tex.App.1981); Nixon v. State, 572 S.W.2d 699 (Tex.Cr.App.1978); Tex.Code Crim.Pro.Ann. art. 21.17 (Vernon *492 1966). An indictment is sufficient if it substantially tracks the statute. See Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1974). We therefore conclude that the indictment is sufficient to describe an offense, and is not fundamentally defective.
All of appellant's grounds of error are overruled. The judgment of the trial court is affirmed.
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410 Pa. 590 (1963)
Kretz Estate.
Supreme Court of Pennsylvania.
Argued January 11, 1963.
March 21, 1963.
*591 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
*592 Paul N. Schaeffer, with him John W. Forry, Emma Forry Mullen, and Forry and Forry, for appellants.
John S. Speicher, for appellees.
Alvin A. Woerle, with him Ruth, Weidner, Woerle & Yoder, for appellee.
OPINION BY MR. JUSTICE ROBERTS, March 21, 1963:
This is an appeal from a decree of the Orphans' Court of Berks County, dismissing appellants' exceptions to an order of distribution.
Adolph H. Kretz died in December, 1950. By his will, duly probated, he devised his residuary estate to trustees for the benefit of his widow, Eleanor Kretz, for life, with a general power of appointment in her to dispose of the trust res by will. In default of appointment, he directed distribution under "the Intestate Laws."
Eleanor Kretz died June 9, 1961, leaving a five page holographic will dated December 22, 1954. On the last page of the will, below her signature, she had written:
"Residuary of the Estate to
go to Esther Fleming
Kathryn Graeff
Bobby Allen
Bersk County Trust Company
Exequatars"
No signature appeared following this writing on the page. The five pages were found in a white envelope on which Eleanor Kretz had written:
*593
"My Last Will
December 22nd 1954
Eleanor Kretz
1201 Perkiomen Ave
Reading Pa
Berks County Trust Company
Exequatars"
In a larger, brown envelope, on which she had written "Eleanor Kretz Will & Codicil," were found the white envelope and a separate sheet of paper. On the sheet of paper were written two holographic, signed codicils, dated September 24, 1960. Each was entitled "Codicil to my Will." The substance of these codicils dealt with the inscription of her tombstone[1] and the care of the cemetery plot, with a further direction to omit flowers but to give to the Heart Fund. Neither writing contained any reference to her will, to the writing below her signature on the last page, or to the power of appointment under her husband's will.
The five pages, the white envelope, and the codicils were admitted to probate. No appeal was taken. The trustee under the will of Adolph Kretz filed its account, in which it proposed distribution of the trust property to the three persons named by Eleanor Kretz below her signature on the last page of her will (Appellees). The heirs of Adolph Kretz (Appellants) filed exceptions to the proposed distribution, which exceptions were dismissed. This appeal followed.
It is the position of appellants that Eleanor Kretz failed to exercise the power given under her husband's will, in that neither her will nor the codicils contained an exercise of the power. They contend that the writing on the last page in which appellees are named is *594 not a valid testamentary disposition because it is not signed by Eleanor Kretz "at the end thereof" as mandated by Section 2 of the Wills Act,[2] and that this fatal defect is not remedied by her signature on the white envelope or on the codicils.
Appellees take the position that the failure of appellants to appeal from the probate of the will of Eleanor Kretz precludes them from asserting that there was no exercise of the power. With this we do not agree. Whether there was a legally effective exercise of the power the basic controversy is not a question determinable by probate of Eleanor Kretz's will, but is clearly a matter of distribution under the will of Adolph Kretz. Cf. Monske Will, 402 Pa. 610, 168 A.2d 326 (1961); Galli's Estate, 250 Pa. 120, 95 A. 422 (1915); Carson's Estate, 241 Pa. 117, 88 A. 311 (1913).
Appellees advance two theories on which, they contend, the disputed paragraph may be considered a valid part of Eleanor Kretz's will: first, that the signature on the white envelope constitutes a signing at the "end" of the will in accordance with the Wills Act (even though it is not disputed that the paragraph was obviously written after she affixed her signature to the last page), and, second, that the codicils effect a republication (or publication) of the unsigned paragraph and, thereby make it a valid exercise of the power. We find neither theory to be meritorious.
Section 2 of the Wills Act of 1947 (which is substantially similar to provisions in the Act of 1833 and subsequent acts[3]) provides: "Every will . . . shall be in writing and shall be signed by the testator at the end thereof, subject to the following rules and exceptions:
*595 "(1) Words following signature. The presence of any writing after the signature to a will, whether written before or after its execution, shall not invalidate that which precedes the signature." (Emphasis supplied.)
Since the adoption by the Legislature of the statutory requirement that a will be signed "at the end thereof," "This Court has consistently resisted attempts to weaken or modify the rule. . . . Justice KEPHART (later Chief Justice) said in Maginn's Estate, 278 Pa. 89, 91, 122 A. 264: `In interpreting the legislature's thought, courts have rigidly opposed any exception tending to weaken the basic principle underlying the law, the chief purpose of which is to see that the testator's wishes are observed. It is possible, in some cases, a "decedent may have thought he had made a will, but the statute says he had not. The question is not one of his thought in that respect, but what he actually did, or . . . failed to do . . . ."'" Baldwin Will, 357 Pa. 432, 440, 55 A.2d 263, 267 (1947). As early as Wineland's Appeal, 118 Pa. 37, 41, 12 A. 301, 302 (1888), Mr. Justice Paxson rather appropriately remarked: "It says a will must be signed at the end thereof, and that's the end of it." The end contemplated by the Act is not the point which is physically furthest from the beginning of the writing. As we said in Kehr Will, 373 Pa. 473, 479, 95 A.2d 647 (1953): "`The end contemplated by the statute is the logical end of the language used by decedent in expressing his testamentary purpose,'" or, as was said in Coyne Will, 349 Pa. 331, 333, 37 A.2d 509 (1944): "`. . . there must be a sequence of pages or paragraphs which relates to its logical and internal sense, and the signature must be placed at the sequential end.'" See, also, Baldwin Will, 357 Pa., supra.
The briefs of counsel cite no appellate decisions of our courts which construe a signature on an envelope *596 to be a signing at the end of the document inside, nor has our research uncovered any such cases. There are, however, two lower court cases on this point. Koenig's Estate, 22 Pa. D. & C. 275 (Orphans' Ct. Dauphin Co. 1934), held that the signature on an envelope signed "Last will and testament of Louis Koenig" did not constitute a signature at the end of the enclosed, unsigned document. In Maxwell's Estate, 18 Pa. D. & C. 111 (Orphans' Ct. Phila. Co. 1932), the court held that the writing on the envelope ". . . cannot be construed as the signing at the end of the testamentary dispositions required by the Wills Act. This is not a signing at all; it is only an endorsement."
Appellees rely on language of the Court in Whitaker's Estate, 219 Pa. 646, 69 A. 89 (1908), and Willing's Estate, 212 Pa. 136, 61 A. 812 (1905). Both are clearly distinguishable. In each, the writing on the envelope was not signed. It is obvious, therefore, that this Court, in those cases, was not called upon to, and did not, decide the question here presented.
Other jurisdictions have been called upon to decide the same basic question here to be resolved. An unsigned holographic will found in an envelope signed "My Last Will & Testament Anna Fink Baird Miller. . ." was held invalid by the Court of Appeals of Kentucky in Miller's Executor v. Shannon, 299 S.W.2d 103 (1957). In doing so, that Court said that it ". . . does not lightly set aside a will and . . . gives a liberal construction to . . . [the statutory provision], providing that a signature must be `at the end or close of the writing.'" Id. at 106. On substantially similar facts, identical results were reached in Estate of Tyrrell, 17 Ariz. 418, 153 P. 767 (1915); Estate of Manchester, 174 Cal. 417, 163 P. 358 (1917); Succession of Fitzhugh, 170 La. 122, 127 So. 386 (1930); and Warwick v. Warwick, 86 Va. 596, 10 *597 S.E. 843 (1890). In the last three jurisdictions, the Courts concluded that the words and signatures on the respective envelopes were solely to identify the contents thereof.
In North Carolina, whose statute requires only that testator's signature appear anywhere on the will, not necessarily at the end, the opposite result was reached in Alexander v. Johnston, 171 N.C. 468, 88 S.E. 785 (1916), and subsequent cases. In reaching its decision, the North Carolina Court cited Fosselman v. Elder, 98 Pa. 159 (1881), which dealt with an envelope addressed to an individual (the envelope was unsigned). Inside the envelope was a signed testamentary document making a gift to "you." The envelope was construed together with the letter to constitute a valid disposition. The issue was merely one of identification of a beneficiary, not location of signature. This Court in Fosselman said that the natural order of reading should control and that the writing on the envelope should be read as a preface to the letter. On that reasoning, the material on the white envelope in the instant case should be read first as identifying its contents, not last as a signature.
We are convinced that the writing on the white envelope was intended to identify the document enclosed and to recite the date on which it was written, the name of the writer, her residence and the name of the executor, not to serve as a signature to a testamentary disposition of property. Whether Eleanor Kretz thought that what she was enclosing was a valid will, including a disposition of the trust estate, is immaterial. The endorsement cannot be construed, factually, logically or legally, under the Wills Act, to be her signature at the "end" of her will.
We now turn to the remaining issue whether the codicils written by Eleanor Kretz gave validity to the unsigned paragraph.
*598 While it is true that a codicil republishes a will, see Crooks Estate, 388 Pa. 125, 130 A.2d 185 (1957); Knecht's Estate, 341 Pa. 292, 19 A.2d 111 (1941); we are aware of no Pennsylvania authorities which hold that a codicil republishes (or publishes) matter which follows the signature or "end" of the will. The cases relied upon by appellees, among which were Steiger Will, 9 Fiduc. Rep. 147 (Orphans' Ct. Phila. Co. 1958) and Brock's Estate, 247 Pa. 365, 93 A. 487 (1915), do not support their position. In Steiger, a properly executed will was modified by a subsequent marriage. The codicils signed after the marriage had the legal effect of republishing the will. The will and codicil in Brock's Estate, once valid, were later invalidated by a tearing of the single sheet on which they were written. Both were held republished when testator again affixed his signature to the torn sheet. The subsequent modification of the Steiger will and the destruction of the will and codicil in the Brock case were not defects in the initial signing of the instruments. Each, therefore, was capable of republication by subsequent appropriate act of testator. Here, however, the defect was failure to sign a testamentary disposition "at the end thereof."
In the absence of any reference in the codicils to the unsigned paragraph, there is no republication (or publication) of that paragraph. An extrinsic writing may be incorporated into a will or codicil by reference, provided it is clearly identified in that document. See Galli's Estate, supra; Baker's Appeal, 107 Pa. 381 (1885); 6 Hunter, Penna. Orphans' Court Common-place Book, Wills § 1(n) (2d ed. 1959). This obviously was not done by Eleanor Kretz in her codicils.
Our review of the full record and consideration of all of appellees' contentions lead us to the conclusion that Eleanor Kretz did not exercise, by her will or codicils, the power of appointment under her husband's *599 will. The court below, therefore, erred in dismissing the exceptions to the schedule of distribution in the estate of Adolph H. Kretz.
The decree is reversed. Appellants to pay costs.
Mr. Justice MUSMANNO dissents.
NOTES
[1] The instructions concerning the tombstone repeat a similar provision contained in her will which had been executed six years earlier.
[2] Act of April 24, 1947, P.L. 89, 20 P.S. § 180.2 (1950).
[3] Act of April 24, 1947, P.L. 89, 20 P.S. § 180.2, Commissioner's Comment (1950).
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654 S.W.2d 669 (1983)
Larry WOOLEY, Plaintiff-Appellant,
v.
GOULD, INC. and CNA Insurance Company, Defendants-Appellees.
Supreme Court of Tennessee.
July 5, 1983.
*670 T. Robert Hill, Jackson, for plaintiff-appellant.
Carthel L. Smith, Jr., Lexington, for defendants-appellees.
OPINION
HARBISON, Justice.
In this case appellant filed a petition or motion pursuant to Rule 60.02, T.R.C.P., to set aside and reopen a judgment of the Chancery Court of Madison County approving a lump-sum workers' compensation settlement. The settlement had been approved by the Chancellor on August 29, 1979. The motion for relief from the judgment was filed exactly one year later, on August 29, 1980. The Chancellor denied the motion on the ground that it was not timely, that there had been no tender or offer to return the benefits received and that appellant had filed a tort action in the circuit court seeking damages predicated upon the same allegations as those made in this case.
We do not deem that the last of these reasons is pertinent to the issues presented, but because we believe that the first two reasons given by the Chancellor were correct, his judgment is affirmed.
A motion seeking relief under Rule 60.02, T.R.C.P., must be filed within a reasonable time and if based upon claims of mistake, inadvertance, surprise, excusable neglect, fraud, misrepresentation, or other misconduct of an adverse party it must be filed not more than one year after the judgment was entered.
The reasons alleged for relief in this case are all based upon one or more of these grounds. The motion was filed on the anniversary date of the order sought to be set aside, and, therefore, was filed within the very maximum time limit permitted. This, however, does not make it timely if the trial court finds, as a matter of fact, that the movant has not acted reasonably and that he could have fairly and reasonably been expected to file the motion much more promptly.
Appellant asks this Court to prescribe procedures for the hearing of motions such as this. This is unnecessary, since Rule 43.05, T.R.C.P., expressly provides for the disposition of motions. That rule states:
"When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions."
In the present case the matter was heard upon affidavits and upon detailed discovery depositions filed with the Chancellor on the date of the hearing, May 14, 1982.
An examination of these various documents reveals material and substantial evidence to support the finding of the Chancellor that the motion was not timely filed.
Appellant was employed by Gould, Inc., on April 3, 1979. He had worked for about two weeks when, on April 18, 1979, he injured his back while engaged in lifting. He was first seen by his family physician, Dr. White, who hospitalized him briefly. Dr. White then referred him to Dr. Glenn Barnett, who performed a laminectomy for a ruptured lumbar disc. Appellant was discharged by Dr. Barnett to return to work on a restricted basis as of July 16, 1979. One of his office notes, exhibited to appellant's deposition, was dated July 5, 1979. It states:
"Patient comes in today, seems to be doing relatively well. His wound is nicely healed. Returned him to work on 7-16-79 with a light duty requirement of 30 lbs lifting for 3 months and then return to us if he has any problems in the future. After 3 months I think he should be able to resume his normal activities."
Appellant was paid temporary total disability benefits from the date of his injury through July 25, 1979, a total of sixteen weeks. The workers' compensation carrier also paid $6,486.79 for medical and hospital expenses incident to appellant's injury and treatment. Dr. Barnett gave appellant a permanent partial disability rating of fifteen percent of the body as a whole. Upon this basis the insurance carrier paid, and *671 appellant accepted, a lump-sum settlement of $6000. This payment was made immediately after the parties presented to the Chancellor a joint petition, signed and sworn to by appellant, seeking approval of settlement upon that basis. The Chancellor did approve the settlement after a hearing. Appellant signed the order of settlement and also signed a separate release, acknowledging complete settlement of all of his claims against the employer and the insurer under the Workers' Compensation Act. The settlement was duly presented to the Workers' Compensation Division of the Department of Labor and apparently approved by the Department. At least, no motion was made by the Department to reopen the settlement as provided in T.C.A. § 50-1006.
Because the date of appellant's injury preceded the effective date of a 1979 amendment to T.C.A. § 50-1023, a lump-sum settlement of appellant's claim could not have been ordered without approval of the employer and the insurance carrier. Appellant testified that he desired to receive a lump sum, and the other parties agreed.
One of the complaints of appellant in his motion for relief was that neither the insurance carrier nor its attorney advised him that he would be unable to find gainful employment. He had already been advised by his employer, however, on July 16, 1979, that it had no suitable work for him in his disabled condition. This was over a month before the workers' compensation settlement was entered into, and neither the insurer nor its attorney had anything to do with the employment policies of Gould, Inc.
At some time after the settlement was entered into, however, appellant, while not seeking counsel or seeking to re-open the workers' compensation award, filed a complaint with the Department of Labor alleging that his employer had discriminated against him because of his handicap. The record contains no documents concerning that proceeding, nor do the dates and the nature of the proceeding appear in the record.
After the settlement in August 1979 appellant testified that he saw Dr. Glenn Barnett on one or two more occasions for a checkup. The record is unclear as to whether he reapplied to his employer for work after October 16, 1979 (three months after he was told by Dr. Barnett that he could do light duty). He did seek employment with a CETA program and he also apparently drew unemployment compensation benefits for a short time. Although his deposition was somewhat unclear on the point, however, it does not appear that he sought further medical attention from Dr. Glenn Barnett or from anyone else until after the settlement had been entered into. He apparently did not seek counsel until July 31, 1980, eleven months after the date of the settlement, and his attorney stated of record that he did not see another physician, Dr. Robert Barnett, until after he had employed counsel. The only report from Dr. Robert Barnett in the file is dated November 10, 1980. It reflects the results of an examination performed three days earlier, November 7, 1980. Dr. Robert Barnett stated that he found that
"a 15 percent anatomical rating for two back surgeries is not unreasonable... ."
He stated, however, that in view of "arthritic components" and the surgery which appellant had undergone, appellant
"... has become disqualified for anything but very light work. His limitation would be something in the region of 20 lbs. but not on a repetitive basis."
Dr. Robert Barnett reported that his examination revealed degenerative disc disease of the cervical spine, but he was not sure whether this was related to the original injury or whether it was "just developmental."
As far as the record reveals, appellant first saw Dr. Robert Barnett on November 7, 1980, over fourteen months after the date of the settlement which he seeks to set aside. Thereafter on December 9, 1980, he saw a clinical psychologist, and on January 14, 1981, he saw a psychiatrist.
*672 On its facts the case is quite different from any other reported decision in which relief from a workers' compensation settlement has been permitted. In one of the first such cases, Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503 (1939), the settlement was entered on July 16, 1938, and the petition to re-open was filed on September 1, 1938, about six weeks later. The time interval between the settlement and the petition for relief was not set forth in Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441 (1964), 387 S.W.2d 344 (1965), but the Court indicated that on its facts the case was very similar to the Gann case, supra.
In Eller Brothers, Inc. v. Perkins, 223 Tenn. 152, 443 S.W.2d 440 (1969), the settlement order was entered on October 31, 1967, and the motion to re-open was filed March 1, 1968, three months later. In Corby v. Matthews, 541 S.W.2d 789 (Tenn. 1976), the interval was approximately five months, from February 3, 1975, until July 7, 1975. As made clear in the Corby case, supra, such petitions have been permitted where there is a claim of fraud or mistake of fact with respect to the condition and degree of disability existing on the date of the original settlement order, but not with respect to some increase or decrease of disability thereafter. In that case the Court said:
"By entering into lump sum settlements, both parties run a risk of injury. The employee runs the risk that his disability may increase in the future and the employer runs the risk that the disability of the employee may decrease in the future, but both parties are bound and foreclosed by the entry of a valid decree approving a lump sum settlement." 541 S.W.2d at 793.
In the present case the claim of appellant is essentially that he was not told that his disability from the standpoint of workers' compensation might or could exceed the anatomical disability rating given by the physician, that he was not advised of his right to counsel or a trial, and that he was told that the lump-sum settlement was all that he could ever receive. As we understand the record, there is no claim that he in fact had a greater anatomical disability than fifteen percent, but it is the opinion of his counsel, employed eleven months later, that he could have been given a greater disability rating by the trial judge had all of the facts and circumstances been developed.
In this regard, however, it does not appear that he received any further medical treatment or developed any new or different symptoms after the settlement, as was true in most of the cases cited above where re-opening has been permitted. In addition appellant testified that "a lot of people" told him that he had not received a sufficient award in the settlement. He said that his sister, Wanda Jones, was one of these persons but that he did not go to an attorney or seek legal advice until she finally made an appointment for him on July 31, 1980, eleven months after the date of the settlement.
There are regular methods for re-opening and re-evaluating long-term disability awards in workers' compensation cases. One of these is, of course, provided in T.C.A. § 50-1006, where the Department of Labor may intervene. Another is provided in T.C.A. § 50-1025, where continuing awards may be re-opened at intervals of six months or more. Lump-sum settlements, however, are ordinarily final and they have essentially the same status as other consent decrees. It is a very difficult and serious matter to undertake to set aside a formal judgment of a court, particularly after the lapse of a year, as occurred in this case.
It is a question of fact, and not one of law, as to whether a movant under T.R.C.P. 60.02 has acted within a reasonable time. In the present case it appears that appellant, while having a limited education, nevertheless talked to many persons about his award and about his re-employment. He apparently went to some officials in the Labor Department about his claim of discrimination. Nevertheless he did not seek further medical advice or evaluation for a long period of time, apparently over fourteen *673 months. Even then the report of his second orthopedic examiner was inconclusive as to whether the first disability rating was or was not accurate.
Under all of the circumstances we are unable to say that there was no material evidence in this record to support the conclusion of the Chancellor that appellant did not timely seek to reopen the settlement agreement. In the various affidavits and depositions filed there are some discrepancies and controverted issues of fact, not easily resolved without an oral hearing and detailed findings of fact. There is no dispute, however, as to the time sequence. A trier of fact could reasonably conclude that the delay in this case, far greater than that in any other reported case, was too great to meet the requirements of Rule 60.02.
In addition, as pointed out by the Chancellor, at no point did appellant ever offer to tender into court or to repay the lump-sum benefits which he received. This has been a requirement in the reported decisions in this state since Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441 (1964), 387 S.W.2d 344 (1965). It was followed in Eller Brothers, Inc. v. Perkins, 223 Tenn. 152, 443 S.W.2d 440 (1969), and in Corby v. Matthews, 541 S.W.2d 789 (Tenn. 1976). The requirement was sharply challenged and was reconsidered in some depth in Cordell v. Sky Rides of America, Inc., 218 Tenn. 485, 404 S.W.2d 488 (1966). The Court was asked to rescind the rule requiring a tender of the amount received under a settlement in a workers' compensation case, but it declined to do so.
In the case of Cockrell v. B & S Concrete Supply, 477 S.W.2d 9 (Tenn. 1972), the requirement of tender was alleged to be unconstitutional, depriving an employee of due process and equal protection of the law. These contentions were found by the Court to be without merit, and the requirement of tender was reiterated.
Appellant seeks to distinguish the foregoing cases because they did not arise under T.R.C.P. 60.02. They did, however, arise under one of the predecessors of that rule, the writ of error coram nobis, or under separate suits in equity to rescind workers' compensation settlements. T.R.C.P. 60.02 is a rule of procedure only, and not one of substantive law. The decisions quoted above considered tender as a part of the substantive law of rescission, and not a requirement peculiar to any particular form of procedure.
Because the rule has been so firmly engrafted into the substantive law of this state and made a requirement in cases such as this, we are not inclined to depart from the cases referred to above. In the first case in which the rule was announced, Lindsey v. Hunt, supra, the Court pointed out the need for great care by trial judges in approving workers' compensation settlements on the one hand, and the equally great need of stability in a proceeding such as this on the other.
The Chancellor did not address the sufficiency of the evidence of fraud or mistake in this case, nor is it necessary that we treat these at length. Unlike the cases where re-opening has been permitted, however, there is no claim that the worker was misled by a company doctor's report and then obtained further medical evidence or that there was any actual misstatement to him of the nature and extent of his injury. It is claimed here that another judge might have made a greater award, which is extremely speculative, and that trial judges never base an award solely on the medical disability rating, which is not an accurate conclusion. Judges are not required to confine an award to that rating, but the fact that an award is so based does not necessarily render it fraudulent or vulnerable because the claimant later becomes dissatisfied.
The judgment of the Chancellor is affirmed at the cost of appellant. The cause will be remanded to the trial court for collection of costs and any other orders which may be necessary.
FONES, C.J., and COOPER, J., concur.
DROWOTA, J., files dissenting opinion.
BROCK, J., joins in dissent.
*674 DROWOTA, Justice, dissenting.
The Chancellor in this cause granted the Defendants' motion for summary judgment and, in so doing, also overruled Plaintiff's motion to set aside a final judgment pursuant to Rule 60.02 TRCP. This was clearly error because the record shows that genuine issues as to numerous material facts were presented to the Chancellor for his consideration, and it was error, therefore, for him to grant summary judgment. See Jones v. Home Indemnity Insurance Co., 651 S.W.2d 213 (Tenn. 1983).
Plaintiff's amended complaint alleges "that this settlement was procured through fraud, deceit, and misrepresentation of law and fact practiced upon Larry Wooley by the Defendant, CNA Insurance Company and Gould, Inc." These allegations were denied by the Defendants in their affidavits and depositions filed in support of their motion for summary judgment.
We find in the record on appeal the affidavit and deposition of the claim representative who handled this claim for the Defendant CNA, the affidavit of the attorney who prepared the petition and order and submitted the matter for the Chancellor's approval, and the deposition of the Manager of Industrial Relations for the Defendant Gould, Inc. These depositions and affidavits affirmatively deny any wrongdoing. Defendant also filed Larry Wooley's deposition. In response to Defendants' motion for summary judgment, Plaintiff filed the affidavit of Larry Wooley. Hotly contested issues of material facts were raised by these depositions and affidavits.
The issue of fraud by its very nature, is one which requires for determination the actual hearing and viewing of witnesses whose credibility is of paramount concern for the trier of facts. Long v. State Farm Fire & Casualty Co., 510 S.W.2d 517, 519 (Tenn. App. 1974). As the majority opinion states, "[I]n the various affidavits and depositions filed there are some discrepancies and controverted issues of fact, not easily resolved without an oral hearing and detailed findings of fact." The majority opinion, however, affirmed the Chancellor's denial of Rule 60.02 relief on the ground that the motion was not timely filed and that there had been no tender or offer to return the benefits received.
Plaintiff's motion was filed within the time permitted in Rule 60.02, although, as pointed out in the majority opinion, it was "filed within the very maximum time limit permitted."
I think it is important to note that Appellant has a limited education. He can barely read and is unable to write much more than his name. He was classified, by expert witnesses through affidavits, as functioning within the range of borderline retardation. He did not seek counsel until more than 11 months after the date of the settlement. His counsel then filed a Rule 60 motion within the one-year deadline. I do not feel we should dismiss one's claim and deny him access to the courts under the facts and circumstances of this case. Equity and fairness entitles a disabled employee to have his day in court.
Neither do I believe that an indigent's access to the courts should be denied for failure to tender. In this case, Appellant is proceeding as a pauper on appeal. He is 37 years old, married and has two children. He has not been gainfully employed since the date of his injury, April 18, 1979. He testified that he took the lump sum because he was "deep in debt ... I'd been off work so long."
Courts must make sure that the rights of the employee are being upheld under the compensation laws. I, therefore, respectfully disagree with my colleagues, for this was not a proper case to dismiss on summary judgment. I would reverse the order granting summary judgment and remand for a full hearing on Appellant's Rule 60.02 motion.
BROCK, J., concurs in this dissent.
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410 Pa. 558 (1963)
Bosack
v.
Pittsburgh Railways Company, Appellant.
Supreme Court of Pennsylvania.
Argued March 20, 1963.
April 16, 1963.
Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Earl W. Brieger, with him Parker, Evashwick & Brieger, for appellant.
Frank J. Kernan, with him P.J. McArdle, for appellee.
*559 OPINION BY MR. JUSTICE BENJAMIN R. JONES, April 16, 1963:
This is an appeal in a trespass action for personal injuries from a judgment entered upon a verdict in favor of Cecelia Bosack (appellee) and against Pittsburgh Railways Company (appellant).
The accident which resulted in this litigation occurred at approximately 7:30 a.m. on October 2, 1956 "a nice clear day" when appellee fell while crossing East Ohio Street near its intersection with East Diamond Street in Pittsburgh. In the center of East Ohio Street which is approximately 42 feet wide and runs generally east and west are two railway tracks owned by appellant which tracks are flanked on both sides by lanes for vehicular traffic. The vehicular portion of East Ohio Street is paved with asphalt while that portion of the street immediately adjacent to and between the several rails is paved with cobblestones. East Diamond Street approximately 32 feet wide runs generally north and south and intersects East Ohio Street. At this point, East Ohio Street on the north side of which is the Carnegie Library and on the south side of which is the North Side Market is generally subject to heavy vehicular traffic but at the time of the accident such vehicular traffic was practically nonexistent.
At 7:00 a.m. on the date of accident appellee, having completed her duties as a waitress in a restaurant, was en route to do some shopping at the North Side Market. At a point approximately five or eight feet west of the pedestrian crosswalk located at the intersection of East Ohio and East Diamond Streets, appellee left the sidewalk on the north side of East Ohio Street and started to cross to the south side of that street. When appellee had traversed approximately 24 feet of East Ohio Street she came to the fourth or most southerly rail and when she "got to the fourth track, *560 there was a hole there and [her] foot slid in" and she fell, sustaining personal injuries.
Appellee instituted a trespass action in the Court of Common Pleas of Allegheny County against the appellant. In her complaint appellee averred that appellant was negligent in the following respects: (a) in permitting the pavement adjacent to the rail of its track to remain in a sunken condition; (b) in failing to maintain its tracks and right-of-way in a reasonably safe condition for pedestrian traffic; (c) in failing to barricade the rail when appellant knew or should have known of its dangerous condition; (d) in failure to warn of the exposed rail; (e) in disregarding appellee's safety; (f) in failing to exercise due care under the circumstances. After a trial before the Honorable F.G. WEIR and a jury, the jury returned a verdict in favor of appellee and against appellant in the amount of $25,479.40. Appellant's motion for judgment n.o.v. having been refused, judgment was entered on the verdict and this appeal was taken.
The sole question on this appeal is whether, under the facts of record, appellant is entitled to judgment n.o.v. Appellant takes the position that it is entitled to judgment n.o.v. because (1) there was insufficient evidence upon which to predicate a finding of negligence; (2) appellant had neither actual nor constructive notice of the defect in the street; (3) appellee was guilty of contributory negligence as a matter of law.
In passing upon the question raised on this appeal we must view the evidence in the light most favorable to appellee: Pugh v. Ludwig, 409 Pa. 517, 519, 186 A.2d 911 n2; Lescznski v. Pittsburgh Railways Co., 409 Pa. 102, 105, 185 A.2d 538.
The sole witnesses to the happening of this accident were one S.E. Fairtrace and appellee.
Fairtrace, standing on East Ohio Street near an outdoors newsstand about 170 feet west of the point *561 of the accident, saw appellee fall as she reached "the second set of rails" and he went to her assistance and found appellee "laying there, and her right foot was near the rail, and her left foot was doubled up under her." Fairtrace testified: that appellee had reached the "second set of rails" and "the last rail over she had caught her toe in the hole that was there and fell" and it "was inside of the two rails"; that "[appellee's] foot was near the hole" which he described as "around two inches on two or three stones, then it sloped up sort of, a gully like"; that the "cobblestones naturally slipped down towards the rail. The cobblestones were inside the rail, and outside the the inside were the stones going crossways, three or four of them on the ends were deep down in" and that part that was two inches deep was "right up against the rail". On cross-examination, Fairtrace stated that, judging from "a one and a half inch mark on the toe of [appellee's] shoe", appellee must have tripped on the rail; that the depressed condition of the cobblestones was "about one and a half or two inches" over a width of "twelve to fifteen, maybe eighteen inches long."
Appellee testified simply that when she reached the fourth track (obviously the fourth or most southerly rail of the second set of tracks) there "was a hole there, and [her] foot slid in".
Viewing the testimony in the light most favorable to appellee, certain facts appear clearly established: (a) that appellee was crossing not at the ordinary and usual pedestrian crossing but at a point some five to eight feet west thereof; (b) that the accident occurred at a point adjacent to the fourth or most southerly rail; (c) that at the point of accident several cobblestones over a width of fifteen to eighteen inches had sunk to a depth of one and one-half to two inches; (d) that appellee's foot caught in the rail at this point.
*562 Appellee, a pedestrian, elected to cross East Ohio Street at a point other than the established street crossing located at the intersection of East Ohio and East Diamond Streets. While appellee was not restricted to the use of the established street crossing, yet, when she elected to cross the street at a point other than the usual crossing she was required to have a reasonable excuse for so doing: Watts v. Borough of Plymouth, 255 Pa. 185, 99 A. 470. The reasonableness and validity of her excuse for not utilizing the usual pedestrian crossing was a question for determination by the jury and we must assume that the jury, by its verdict, found justifiable appellee's crossing at the point she elected to do so.
It was the duty of the railway company to maintain and keep in a reasonable state of repair the spaces between and the area immediately adjacent to the rails of its tracks. Such duty of maintenance and repair of the street on the part of the railway company is akin to the duty of a municipality to maintain and repair its streets and the liability of a railway company to persons injured by defects in a street or highway is no higher nor greater than that which the law imposes upon the municipality itself: Sanford v. Union Passenger Railway Co., 16 Pa. Super. 393. In the maintenance and repair of such areas neither the municipality nor the railway company is an insurer: Commonwealth of Pennsylvania, Department of Highways v. Eldridge, 408 Pa. 391, 396, 184 A.2d 488; Aloia v. City of Washington, 361 Pa. 620, 622, 65 A.2d 685; Koch v. White Haven Borough, 360 Pa. 627, 630, 63 A.2d 1; Davis v. Wilkes-Barre, 286 Pa. 488, 499, 134 A. 105.
In Henn v. Pittsburgh, 343 Pa. 256, 258, 22 A.2d 742 (p. 258), this Court said: "A city [the railway in the instant case] cannot be expected to maintain its . . . street crossings in a perfectly level condition, *563 and where the defect consists of some slight variation between the elevation of adjoining paving blocks, flagstones or curbstones . . . no liability is imposed upon the municipality [on the railway in the instant case]: [citing cases]." A railway company, not being an insurer, is required only to exercise reasonable care in maintaining the street areas which it has the duty of maintaining and repaving. The duty which the law imposes upon a railway in such a situation is not to keep the streets or highways completely free of any defect or irregularity but reasonably free of such irregularity or defect as would make likely an injury to a pedestrian crossing said street or highway. To hold otherwise would impose upon a railway an impossible, impractical and unjustifiable burden: German v. McKeesport City, 137 Pa. Super. 41, 50, 8 A.2d 437.
Time and again our courts have held that an elevation, a depression or an irregularity on a street or highway may be so trivial that courts, as a matter of law, are bound to hold that there was no negligence in permitting such depression or irregularity to exist: Koch v. White Haven Borough, supra; Van Ormer v. Pittsburgh, 347 Pa. 115, 31 A.2d 503; Henn v. Pittsburgh, supra; Davis v. Potter, 340 Pa. 485, 17 A.2d 338; McGlinn v. Philadelphia, 322 Pa. 478, 186 A. 747; Pischke v. Dormont Borough, 153 Pa. Super. 205, 33 A.2d 480. Examples of elevations, depressions or irregularities upon which courts have held no liability could be predicated are: McGlinn v. Philadelphia, supra; (1 1/2" difference between the levels of two abutting curbstones); Newell v. Pittsburgh, 279 Pa. 202, 123 A. 768 (1 1/2" between adjoining ends of flagstones at street crossing); Foster v. West View Borough, 328 Pa. 368, 195 A. 82 (uneven, rough, unpaved step between curb and sidewalk 2' wide and 2" to 4" lower than sidewalk level); Harrison v. Pittsburgh, 353 Pa. 22, 44 A.2d 273 (manhole cover which projected 2" *564 above surrounding sidewalk); Magennis v. Pittsburgh, 352 Pa. 147, 150, 42 A.2d 449 (hole 1 7/8" below level of pavement and 12" x 15" in area termed by this Court "a defect that was little more than a break in the surface of the street paving"). See also: Wright v. Pittsburgh Rys. Co., 320 Pa. 40, 181 A. 476; German v. McKeesport City, supra. Culver v. Lehigh Valley Transit Co., 322 Pa. 503, 186 A. 70, relied upon by appellee, presents a factual situation inapposite to that in the case at bar.
An examination of the record presented in the case at bar clearly indicates that the depression or irregularity of the cobblestones was of such nature as to bring it within the orbit of our decisions which hold that such defect or irregularity, as a matter of law, does not constitute actionable negligence. During the course of the trial, appellant, ostensibly for the purpose of showing the location of the accident, introduced in evidence certain photographs. Appellee now claims that such photographs were admitted without limitation as to use and that such photographs showed the condition of the defect or irregularity in the street as it existed at the time of the accident. The witness Fairtrace on examining the photographs and noting certain depressions or irregularities in the pavement stated "this hole would be closer to it [in appearance]" and ". . . that [certain holes shown on the photographs] look similar to what it looked like" when the accident happened. Accepting appellee's contention that these photographs were admitted at trial without limitation as to use and further accepting the testimony of Fairtrace that the defects or irregularities which appear on these photographs were similar to the defect or irregularity which caused appellee to fall, an examination of such photographs clearly fortifies our opinion, reached after an examination of the record, that the appellee failed to prove any defect or depression in the surface of the *565 street or any elevation of the rail sufficient upon which to predicate negligence. In our view, giving to the appellee the benefit of all favorable testimony and inferences therefrom, it would be completely unreasonable, impractical and unjustifiable to hold appellant liable for the existence of any such defect or irregularity in the street or elevation of the rail. Appellee has failed to establish any actionable negligence upon appellant's part and the court below should have entered judgment n.o.v.
In the light of the conclusion reached, we need not consider the questions of notice, either actual or constructive, to appellant, of the existence of the defect or irregularity in the street or the elevation of the rail, or of appellee's contributory negligence.
Judgment reversed and judgment n.o.v. directed to be entered.
Mr. Justice MUSMANNO dissents.
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231 Md. 205 (1963)
189 A.2d 611
McDOWELL
v.
STATE
[No. 199, September Term, 1962.]
Court of Appeals of Maryland.
Decided April 2, 1963.
The cause was argued before BRUNE, C.J., and PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.
Albert A. Levin, for appellant.
*207 Herbert L. Cohen, Special Attorney, with whom were Thomas B. Finan, Attorney General, William J. O'Donnell and Abraham Adler, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.
BRUNE, C.J., delivered the opinion of the Court.
The appellant, McDowell, was convicted of arson in the Criminal Court of Baltimore in trial before the court, sitting without a jury. He appeals and contends first, that the evidence as a whole was insufficient to support his conviction, and second, that even if the evidence were otherwise sufficient, the conviction cannot stand because it is based upon the testimony of an accomplice which is not sufficiently corroborated.
A fire occurred at about 6:30 P.M. on January 3, 1962, in a second floor apartment at 800 Reservoir Street, Baltimore, which had been rented to Aldrich, and was occupied by him and McDowell, the latter being a subtenant. Aldrich was in arrears on his rent due the landlord; McDowell was substantially up to date on his rent due to Aldrich. On or about January 1, 1962, the landlord told Aldrich to pay up or get out, and Aldrich was to move out of the apartment by January 3rd. As a result, McDowell, too, was preparing to leave, and planned to move at least temporarily to the home of his sister who lived nearby. (At one point he said that he was to have the Reservoir Street apartment after Aldrich left. Why he should leave at all in those circumstances is not explained.)
There is no serious question, if any at all, as to proof of the corpus delicti. The fire did occur, and there was expert testimony by a Captain of the Fire Investigation Bureau that it was not due to spontaneous combustion or faulty wiring or to "natural causes." There had, indeed, been a number of separate fires. The inference is clear that they had been wilfully and maliciously set. See 1 Wharton's Criminal Evidence (12th Ed., Anderson, 1955), § 17, p. 48, as to proof of the corpus delicti generally, and Code (1957), Art. 27, § 6; Wimpling v. State, 171 Md. 362, 189 A. 248, as to the wilful and malicious *208 burning of a dwelling. Cf. Bollinger v. State, 208 Md. 298, 117 A.2d 913, involving the burning of a barn and arising under § 7 of Art. 27. As Wharton points out "[p]roof of the defendant's connection with the crime as the operative agent, although essential for conviction, is not part of the corpus delicti."
The appellant's first contention alleged insufficiency of the evidence as a whole goes to the proof of his connection with the crime as an operative agent. Since the principal witness for the State was the accomplice, Aldrich, the questions of the sufficiency of the evidence and of the sufficiency of the corroboration of his testimony are closely related. The evidence showed that Aldrich had returned to the apartment at about six o'clock in the afternoon of January 3rd, that he found that the door to the apartment had been padlocked, that he broke the door open, entered and found some article or articles missing, and that he shortly afterwards left the apartment. Just how long he was in it alone is not clear, but it is clear that McDowell was not there with him. As Aldrich came out of the apartment, McDowell was coming, or had just come, in and was on the stairway, apparently at the top of the steps leading to the second floor, and was eating a sandwich. The two had some conversation in which Aldrich told McDowell of the padlocking of the apartment and of breaking the door open. According to Aldrich, McDowell inquired where he could get some gas and said, "we should burn the place down," and Aldrich told him to "go help himself." Aldrich said that he then went down the stairs and went to a public telephone booth about a block away to call the landlord, and that a few minutes later McDowell came running from the apartment and said "I got it going."
A plumber who had been called to open a stopped drain from a sink in one of the apartments arrived at or very soon after the time that Aldrich came out of the front apartment and inquired whether the trouble was in that apartment. Aldrich said that it was not and suggested that the plumber try the rear apartment, which he did. He said that he saw McDowell at the head of the stairs eating a sandwich, that he *209 saw Aldrich go downstairs, and that at that time he saw McDowell still eating his sandwich at the top of the stairs at a point twelve or fifteen feet from the door to the front apartment. Some minutes later the plumber went down the stairs and out to his truck to get some tools. As he went outside he saw flames coming from the second floor front apartment and called the fire department. The fire engines arrived in a very few minutes.
Both Aldrich and McDowell testified that they were together after leaving the apartment, but their accounts differed in some respects. The chief difference was that Aldrich said that he went out first and McDowell said that they left the apartment together. On this point the testimony of the plumber supports Aldrich rather than McDowell.
Aldrich gave two quite different statements as to when he had returned to the apartment from a trip to Connecticut. His first statement was that he had returned early on January 3rd, his second that he had returned on December 30th. He explained the difference as caused by confusion due to his having his mind fixed on January 3rd, the date of his arrest. He was arrested at a railroad station as he was about to return to Connecticut. He had left most of his clothes in a suitcase in a locker there for several days.
McDowell gave conflicting accounts about returning to the apartment on the afternoon of January 3rd and about seeing Aldrich there. At his preliminary hearing in the Municipal Court he denied having been in the building at about the time of the fire and denied having seen Aldrich at any time after the morning of January 3rd. His testimony at the trial was to the contrary as to each. The difference was not explained.
No one testified to seeing McDowell enter the apartment in the late afternoon or early evening of January 3rd. Aldrich said that he had not seen McDowell in the apartment, McDowell denied that he had entered it, and the plumber had not seen him enter it. McDowell testified that some clothing belonging to him was on the landing at the second floor when he was eating his sandwich. He denied having gotten this clothing from the apartment, though he testified that he was *210 going there to get his clothes. Who put them on the landing, when they were put there, and what became of them are not shown. Aldrich denied having seen them.
McDowell was tried on a charge of burglary as well as arson. At the conclusion of the State's case, the court granted a defense motion for a directed verdict on the burglary charge and denied a similar motion on the arson charge. When McDowell took the stand in his own behalf, he admitted generally on direct examination and more in detail on cross-examination that he had been convicted of several offenses. One of them was burglary.
The trial judge who heard McDowell's case had tried Aldrich shortly before and had apparently found him guilty of arson under those provisions of § 6 of Art. 27 of the Code, above cited, which make anyone who aids, counsels or procures the burning of a dwelling guilty of arson as a principal. Aldrich was also convicted of burglary of the same premises. (We assume this grew out of his breaking in when he found the apartment padlocked, but this is not clear from the testimony in the appendix in this case.) The trial judge commented at the end of McDowell's trial that he had to determine whether he should believe McDowell or Aldrich, and he expressly stated that he believed Aldrich. He also recognized that he had to have something beyond Aldrich's statement to warrant a finding of guilt against McDowell.
Leaving to one side for the moment the question of corroboration, we think that the evidence and the inferences which might properly be drawn therefrom were sufficient to enable the trial judge to find McDowell guilty beyond a reasonable doubt of the crime of arson. Arson is likely to be a clandestine offense and proof of it must often be by circumstantial evidence and inferences which may reasonably be drawn therefrom. See Bollinger v. State, supra, 208 Md. at 306. Here we have McDowell within twelve or fifteen feet of the door to the apartment, the lock on which had been broken, so that there was no obstacle to his entry. We also have his statements to Aldrich indicating both a motive for committing the offense and an intention to commit it. There is no showing *211 that the fire had been started prior to the time when Aldrich left, but it was burning a little later twenty to thirty minutes later, according to the findings of the trial judge. This was after McDowell had had the opportunity to enter the apartment and set it afire. The plumber's testimony indicates that Aldrich had left and that McDowell was still there alone a few feet from the unfastened apartment door. The proof of the corpus delicti was ample. Assuming for the moment that there was sufficient corroboration of the testimony of the defendant's accomplice, we cannot say that the trial judge who saw and heard the witnesses was clearly in error in finding McDowell guilty on the evidence before him and reasonable inferences therefrom. Such a finding on our part would be necessary to warrant us in reversing the conviction on the ground of insufficiency of the evidence. Maryland Rule 886 a; Foster v. State, 230 Md. 256, 186 A.2d 619; Espin v. State, 230 Md. 298, 186 A.2d 589; (to cite only two of many cases). The credibility of witnesses is primarily for the determination of the trier of facts. McKenzie v. State, 230 Md. 513, 514, 187 A.2d 885.
We now reach the appellant's contention that the testimony of the accomplice Aldrich was not sufficiently corroborated and that without his testimony the evidence was insufficient to sustain the conviction. In Luery v. State, 116 Md. 284, 81 A. 681, this Court adopted the rule that the uncorroborated testimony of an accomplice is not sufficient to sustain a conviction. The rule has been so frequently restated by this Court since the decision that we think the citation of cases is unnecessary.
Luery posed the question, which has frequently recurred, as to how much is required in the way of corroboration of the testimony of an accomplice. It was there said (116 Md. at 294) that not "too much" should be required, that the corroboration need not be enough to convict exclusive of the accomplice's testimony, and that "the important matter is to have him [the accomplice] supported in at least some of the material points involved, tending to show the guilt of the accused." A generally similar statement based on Luery will be *212 found in Wolf v. State, 143 Md. 489, at 504, 122 A. 641. More recently the test has been stated in somewhat different words. In Polansky v. State, 205 Md. 362, at 367, 109 A.2d 52, it is said that "there must be corroboration of the testimony of an accomplice as to the identity of the accused with the perpetrators of the crime or the crime itself." See also Nolan v. State, 213 Md. 298, at 309, 131 A.2d 851. Judy v. State, 218 Md. 168, at 176, 146 A.2d 29, holds that corroborating testimony "need only support some of the material points of the accomplice's testimony."
In Wright v. State, 219 Md. 643, 150 A.2d 733, cert. den. 361 U.S. 851, the origin of the rule in this State and its history since Luery were carefully reviewed, and the court undertook to "discuss more fully what is meant by the phrase requiring corroboration of `some of the material points involved.'" After referring to two leading textwriters and to the Polansky case, the opinion stated (219 Md. at 650) that "the corroborative evidence must support the testimony of the accomplice as to some of the material facts tending to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime itself." The opinion then pointed out that whether the test is met "must * * * depend upon the facts and circumstances, and the inferences deducible therefrom, in each case."
The Wright case like the instant case, involved a conviction for arson based upon the testimony of accomplices. The opinion enumerates various items of evidence corroborative of the accomplices' testimony. A number of them concerned matters not in themselves unlawful and some were described as corroborating "only the fact that the defendant had engaged in several lawful pastimes such as going to the movies, eating watermelon and roaming the highways and byways late at night," yet these were held (citing Polansky v. State, supra) to afford corroboration as showing "that the defendant was identified with the admitted arsonists." Here the evidence of McDowell's presence, of his having to leave the apartment, and of his being the last person shown to have been in the immediate vicinity of the scene of the crime with both the opportunity *213 and a possible motive to commit the offense serves as corroboration of the identification of the defendant with the commission of the crime, which is the other branch of the Polansky rule. There was also evidence corroborative of McDowell's association with Aldrich just before the fire and almost immediately after it. Aldrich's connection with the offense is shown by his conviction and is, of course, the foundation of the attack on his testimony as that of an accomplice.
The Wright case also stressed the fact that the testimony of the non-accomplice witnesses was consistent with that of the accomplices and inconsistent with that of the defendant. The same is true here of the testimony of the plumber that Aldrich left first and that McDowell remained only a few feet from the apartment. Another point noted as important in the Wright case (219 Md., at 651-52) was that the defendant made false statements with respect to his association with the accomplices a few minutes before the fire was set. A similar false statement exists here, to which is added a false statement (subsequently contradicted by the defendant's own testimony as well as by the accomplice and the non-accomplice witness) that the defendant had not been at the apartment building after the morning of the day of the fire.
The Wright opinion also cited authority (at p. 652 of 219 Md.) to the effect "that corroboration of a material point tending to connect the accused with the crime is sufficient for a jury to infer that the accomplice had testified truthfully even with respect to matters as to which there had been no corroboration." This statement was quoted with approval and was applied in Mulcahy v. State, 221 Md. 413, at 428, 158 A.2d 80, and was cited and applied in Boggs v. State, 228 Md. 168, at 171-72, 179 A.2d 338.
Corroboration need not extend to every detail. Brown v. State, 210 Md. 301, at 305, 123 A.2d 324, and cases there cited.
Other more recent cases dealing with corroboration include: Campbell v. State, 221 Md. 80, 156 A.2d 217; Fulton v. State, 223 Md. 531, 165 A.2d 774; Gray v. State, 224 Md. 308, 167 A.2d 865; Forrester v. State, 224 Md. 337, at 345-47, *214 167 A.2d 878; Hardison v. State, 226 Md. 53, 172 A.2d 407; De Hart v. State, 227 Md. 239, 176 A.2d 353; and Foster v. State, 230 Md. 256, 186 A.2d 619.
Corroboration may, of course, come from the defendant himself. Garland v. State, 112 Md. 83, 75 A. 631; and the Campbell, Mulcahy, Forrester, Fulton, Boggs and Foster cases, just cited.
In an arson case the presence of the defendant in the vicinity of the fire, whether before or after its occurrence, is always relevant. Bollinger v. State, supra, 208 Md., at 307. Evidence as to malice or motive is also admissible in an arson case. Hooker v. State, 98 Md. 145, at 161, 56 A. 390. The relevance and admissibility of such evidence, of course, show its materiality. As to both presence and motive the defendant's testimony corroborates that of the accomplice. He was in the immediate vicinity of the fire shortly before it was set, and he was being put out of the apartment along with Aldrich.
The defendant's presence near the scene of the fire was also corroborated by the independent witness, the plumber, and so was the testimony of Aldrich that he left the place first and without McDowell.
In addition, there is evidence of contradictory and untruthful statements by McDowell relating to his whereabouts at the time of the fire and to his being or not being with Aldrich at about that time. Such statements may of themselves serve to corroborate the accomplice's testimony. Fulton v. State; Wright v. State; Nolan v. State; all cited above.
The most important corroborative evidence we think consists of that which (1) shows McDowell's presence, (2) suggests a motive for setting the fire, and (3) shows that Aldrich departed from the scene when the fire occurred, leaving McDowell at the scene. As to the last of these, as we have noted, the testimony of the nonaccomplice witness corroborated that of the accomplice and contradicted that of the appellant. At that time the appellant had ready access to the place where the fire soon afterwards appeared. All three of these matters were material, and the testimony of the accomplice was corroborated as to each of them, as to two of them by the defendant himself.
*215 Under the tests laid down in the numerous cases above cited, particularly the Wright, Mulcahy and Boggs cases, we think that the testimony of the accomplice Aldrich was sufficiently corroborated to serve as a basis for the conviction of the appellant.
Judgment affirmed.
HORNEY, J., filed the following dissenting opinion.
Contrary to the opinion of the majority, it is my belief that the judgment should be reversed because the evidence relied on by the trial court to corroborate the testimony of the accomplice was too thin to support the conviction of the defendant under the circumstances.
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654 S.W.2d 281 (1983)
Mary IMMS and Heather Elizabeth Imms, a minor, b/n/f Mary Imms, Respondents,
v.
James R. CLARKE, Appellant.
No. WD 33341.
Missouri Court of Appeals, Western District.
June 14, 1983.
*282 Robert G. Duncan, Gladstone, for appellant.
William E. Shull, Kearney, for respondents.
Victoria S. Schwartz, Missouri Dept. of Social Services, Michael R. Henry, Gen. Counsel Div., Jefferson City, amicus curiae.
Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.
*283 SHANGLER, Presiding Judge.
The plaintiff Imms sought a declaratory judgment that the defendant Clarke was the natural father of the infant Heather Elizabeth Imms, and to adjudicate support for the child. The jury returned a verdict that the defendant Clarke was the natural father of the child Heather and awarded a sum for her support.
The evidence was that the mother, Mary Imms, was never married and Heather was her only child. On September 2, 1978, Mary Imms accepted an invitation to the Lake of the Ozarks for a Labor Day weekend with friends. There she was introduced to James Clarke, and the following evening she accompanied him on a boat ride around the lake. The defendant stopped the boat outside a cove and they engaged in an act of sexual intercourse. The plaintiff Imms returned to the lake for the next few weekends and, on each occasion, shared the Clarke cabin and continued the sexual practice. The defendant Clarke then suggested they cool their ardor and she did not return to the lake until November. Around Thanksgiving of 1978, the plaintiff Imms discovered she was pregnant. She telephoned Clarke who at first responded that "he would not shirk his responsibility," and that they should talk about it. Clarke was "very understanding" during that encounter: "He said he would do everything he possibly could to help me financially, emotionally." Clarke soon began to waver: "Jim started saying that he no longer wanted the responsibility. He said he couldn't handle it he didn't want to accept it; I would just have to do it on my own." It was her testimony that for a period of at least eleven months before the birth of Heather, she was intimate with only the defendant Clarke. The child was born on June 13, 1979. It was the Imms testimony that Clarke never denied the paternity of the child.
The defendant Clarke acknowledged the intimacy with Mary Imms on September 3, 1978, and that thereafter they had sexual relations on at least five separate occasions. He repeatedly denied that he was the father of the child. He testified he never sent the child gifts, nor money, nor any other token for support, nor did he ever see the child other than on the occasion of the court proceeding.
The only other testimony was on behalf of the mother. It was Dr. McCalmon, an expert in immunology with extensive experience in the use of the Human Leukocyte Antigen [HLA] test to match donor and recipients for organ transplants. The witness had conducted more than ten thousand of such tissue matchings. HLA is a test also used to determine paternity. The witness subjected the blood samples taken from the mother, the child Heather, and putative father Clarke to the HLA test procedure. The expert explained that the HLA test maps the genetic material of the child twenty-three pairs of chromosomes, twenty-three transmitted by each parent through the antigens in the white blood corpuscles. The HLA system determines genes and their location on chromosomes. The system uses different locations labeled A, B, C, D and DR. The A, B and C loci were tested and each demonstrated that the defendant Clarke and the child Heather shared the paternal haplotype [inherited pairs of antigens]. [The expert discarded the CX combination found as not "that discriminating" under present test techniques. The D and DR loci, also, were not tested for other reasons.][1] The expert testified that any among some 170,000 combinations of [other than those identified in *284 the child] antigens, if found in the father would have conclusively excluded paternity. The expert then applied the Bayes Theorem [a device of statistical interpolation we discuss more fully] to a random sampling of Caucasian population [the Clarke racial trait] to arrive at the 89.1136 percent probability that the defendant was the father of the child Heather.[2] The court allowed the jury to receive this evidence above objection, and the defendant appeals its competency.
The complaint the father makes on appeal is that the opinion by expert McCalmon that there was an 89.1136 percent possibility that Clarke was the biological father of the child Heather was not admissible because the HLA tissue typing test is not a generally accepted procedure in the scientific community, and that otherwise, the factual basis for the opinion was not established in evidence. We defer response to the contention that the HLA test does not yield a reliable conclusion of probability of paternity, and turn first to the subsumed contention that the HLA test does not stand in the scientific community.
It is the rule that results of scientific tests and expert opinions derived from them are admissible only if the scientific principle involved is considered generally reliable and accurate by the scientific community concerned. State v. Johnson, 539 S.W.2d 493, 501[1-3] (Mo.App.1976); Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The reliability of blood tests to exclude parentage that is, to prove nonparentage in certain cases of blood groups is unquestioned in the scientific world and is admitted for that purpose in our courts. State v. Summers, 489 S.W.2d 225, 228[4] (Mo.App. 1972). These tests six basic procedures, the ABO, Rh, Kell among them involve only a small number of variable factors, however, so that the cumulative possibility of exclusion of paternity amounts to only 63 to 72 percent depending on the race. Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247, 257 (1976); Accord Cramer v. Morrison, 88 Cal. App. 3d 873, 153 Cal. Rptr. 865, 867 (1979); T.A.L.S. v. R.D.B., 539 S.W.2d 737, 739[7, 8] (Mo.App.1976). HLA tests, as we noted, involve a much more varied set of factors the antigens [genetic fingerprints] in the white blood cells so that the derived percentile of probability becomes more conclusive. Thus, the HLA white blood cell procedure used conjunctively with the red blood group systems [ABO, Rh, Kell and the others] raises the exclusion probability from 97 percent or higher. Reisner and Bolk, A Layman's Guide to the Use of Blood Group Analysis in Paternity Testing, 20 J.Fam.L. 657, 666, 671 (1981); Carlyon v. Weeks, 387 So. 2d 465, 466 (Fla.Dist.Ct.App.1980); Beautyman, Paternity Actions A Matter of Opinion Or a Trial of the Blood?, 4 J. Legal Med. 17, 19 (1976); Note, Blood Test Evidence in Disputed Paternity Cases: Unjustified Adherence to the Exclusionary Rule, 59 Wash.U.L.Q. 977, 986 (1981); Commonwealth v. Blazo, 10 Mass.App. 324, 406 N.E.2d 1323, 1325[1] (Mass.App.1980).
The adjudicated cases as well as the scientific literature compel conclusion that the HLA test is generally accepted as reliable as evidence of the likelihood of paternity. See among others Cramer v. Morrison, 88 Cal. App. 3d 873, 153 Cal. Rptr. 865 (1979); Carlyon v. Weeks, 387 So. 2d 465 (Fla.Dist. Ct.App.1980); Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490 (1982); Commonwealth v. Blazo, 10 Mass.App. 324, 406 N.E.2d 1323 (Mass.App.Ct.1980); Malvasi v. Malvasi, 167 N.J.Super. 513, 401 A.2d 279 *285 (1979); HLA Test Results Admissible to Prove Paternity Under Pre-1982 Idaho Law, 9 Fam.L.Rep. 2441 (1983).
The opinion the expert witness McCalmon tendered: that there was an 89.1136 percent likelihood that Clarke was the biological father of the child Heather, rested on the HLA test result in combination with the ABO red cell test only. For some reason not explained, Dr. McCalmon did not resort to the other five standard tests of red blood group systems [Rh, MNSs, Kell, Duffy and Kidd], each an inexpensive and easily conducted procedure. These tests, combined with the HLA test, provide a probability of exclusion of 97 percent or more. Note, Blood Test Evidence in Disputed Paternity Cases: Unjustified Adherence to the Exclusionary Rule, 59 Wash.U.L.Q. 977, 986 (1981); Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247 (1976); Stroud, Bundrant and Galindo, Paternity Testing: A Current Approach, 16 Trial 46 (1980); Carlyon v. Weeks, 387 So. 2d 465, 466 (Fla.Dist.Ct.App.1980); State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 648 P.2d 249 (1982), aff'd, 233 Kan. 223, 662 P.2d 1183 (1983). As we noted, there is doubt whether the opinion of expert McCalmon meant that the tests evidenced an 89.1136 percent likelihood of paternity or that the probability of exclusion was by that percentile.
The probability of exclusion and the likelihood of paternity describe two different statistical values. The definitive distinction often cited is given in 16 Trial 46, I.e. 47 (1980):
One of the most prevalent confusions in paternity testing is the difference between the meaning of the terms "probability of exclusion" and "likelihood of paternity." Probability of exclusion is the probability that the tests employed will exclude a falsely accused man. For example, if the probability of exclusion with the tests employed is 95 percent, of 100 non-fathers, 95 will be excluded and five will not be excluded. If the probability of exclusion with the tests employed is 95 percent and no exclusion is obtained, either the alleged father is the true father or he is one of the five out of 100 non-fathers that the tests would not exclude. Another way of stating this is that there is a five percent chance that the alleged father is not the true father, but the tests used would not exclude him.
This does not mean that there is a 95% chance that the alleged father is the true father. Of course, the higher the probability of exclusion, the greater is the likelihood of paternity for a non-excluded man. But there is no direct relationship between the probability of exclusion and the likelihood of paternity. Likelihood of paternity cannot be extrapolated from the probability of exclusion, [emphasis added]
Therefore, probability of exclusion unless in the extreme range is of little aid to a jury to determine the likelihood that the defendant is the biological father of the child. The significance of the probability of exclusion is that if the defendant is not excluded as a possible father, the likelihood of paternity can be estimated by consideration of other available empirical evidence. Reisner and Bolk, A Layman's Guide to the Use of Blood Group Analysis in Paternity Testing, 20 J.Fam.L. 657, 672 (1981); Ellman and Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L.Rev. 1131, 1147 (1979); State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 648 P.2d 249 (1982), aff'd, 233 Kan. 223, 662 P.2d 1183 (1983).
It is the likelihood of paternity value and not the probability of exclusion, therefore, which is probative for a jury on the issue of fatherhood. A statistic that the probability of exclusion is 89.1136 percent that is, that the defendant by that percentage of probability was not falsely accused without other explanation or evidence grossly exaggerates the impact of the proof. For that statistic, stated inversely, connotes that a full 11 percent of the Caucasian male population, at random, could be the actual father of the child. Thus, the accepted recommendation and practice of *286 the scientific community calculates likelihood of paternity only if the serologic tests used for exclusion of paternity accumulate a mean probability of exclusion of 90 percent or more.[3]Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247, 256-8 (1976); 16 Trial at 48 (1980); 54 N.Y.U.L.Rev. 1131, 1161 (1979). This court recognized that such a probability was only the threshold of the admissibility of blood test evidence to establish paternity [although the HLA procedure apparently was not used]. State ex rel. Williams v. Williams, 609 S.W.2d 456, 457 (Mo.App. 1980). See also Carlyon v. Weeks, 387 So. 2d 465 (Fla.Dist.Ct.App.1980); State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 648 P.2d 249 (1982), aff'd, 233 Kan. 223, 662 P.2d 1183 (1983).
To convert the probability of exclusion statistic to a likelihood of paternity as a probative fact in a paternity proceeding, the probability of exclusion must be combined with another factum of information the scientists call the prior probability of paternity. Reisner and Bolk, A Layman's Guide to the Use of Blood Group Analysis in Paternity Testing, 20 J.Fam.L. 657, 670 (1981). It combines the quantitative medical test evidence the gene characteristics found in the defendant, the mother and the child to come to a probability of exclusion of the male as the father. If the tests do not exclude the male as a putative father, then that probability is combined with the probability that a randomly selected male from the general population will exhibit those gene characteristics the prior probability of paternity. Stroud, Bundrant, Galindo, Paternity Testing: A Current Approach, 16 Trial 46, 47 (1980); Beautyman, Paternity Actions A Matter of Opinion Or a Trial of the Blood?, 4 J. Legal Med. 17 (1976); State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 648 P.2d 249 (1982), aff'd, 233 Kan. 223, 662 P.2d 1183 (1983). The Bayes Theorem is the formula by which the conversion is made. It is a basic device of probability theory which describes the way new statistical information [probability of exclusion] alters a previously established probability [the frequency with which these antigens appear in the random population at large]. See 54 N.Y.U.L.Rev. 1131, 1147 (1979); Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490, 491[1] (1982). Thus the Bayes Theorem derives the likelihood of paternity [sometimes called the paternity index] from the probability of exclusion disclosed by the antigen test results of the putative father, mother and child combined with probability that a random man of the same race shares those genetic characteristics. The Bayes Theorem likelihood of paternity for the putative father, then, is "the ratio of his probability to the sum of the probabilities for both men." Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J.Fam.L. 543, 549 (1978). Stated otherwise: "The chance of paternity of a random man is used as a unit of measurement or reference to evaluate the chance of paternity of the putative father." N. Bryant, Disputed Paternity, at 155 (1980).
The witness McCalmon described the genetic information the HLA and ABO tests yielded and then made this application of the Bayes Theorem:
"In fact, the child and the alleged father, putative father, have the gene combinations that we call the paternal haplotype. Each one of us has a maternal haplotype. These are the genetic information received from our mother. And the paternal are those combinations and gene frequencies obtained from our father. That is there. *287 Next we have, what is the chance the individual is not the father? [Drawing on new sheet.] We call it P, for probability, and NF, for not father. And according to Bayes' Theorem, given a known frequency of occurrence we ask, what is the chance of finding a second occurrence. Basically what we're asking here is knowing how often the A3/B7 [the identifiable antigens found in both the defendant and the child] how often this occurs in the random Caucasian population."
The witness went on to describe the typings found both in his thousands of transplant experiences as well as those recorded in the international scientific community to conclude that the A3/B7 characteristic is found in 5.3 percent of the Caucasian population. The witness then concluded:
"And taking all of those into consideration, we basically double ... the frequency of 5.3; and we came up with a probability of not more of .1088 and let's round it off to .11. So the chance or the probability of not being the father is 11 percent, or the probability of being the father is going to be an 89 percent." [emphasis added]
The question was then asked:
"And what was the percentage of exclusion in this case?" [emphasis added]
McCalmon answered:
"Eighty-nine percent." [emphasis added]
The conclusion of the expert was admissible as a probative fact on the issue of paternity only if the statistic amounted to a likelihood of paternity [or the paternity index, as sometimes described]. The premises for such a conclusion of opinion were available the tests, the probability of a person in the random population [not the defendant] who shared the genetic markers, and the operation of the Bayes Theorem to convert that probability upon probability to a likelihood of paternity. The responses of the expert, however, were given in terms of probability of exclusion a statistic from which the likelihood of paternity unless extremely high simply cannot be extrapolated. Stroud, Bundrant and Galindo, Paternity Testing: A Current Approach, 16 Trial 46, 47 (1980); State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 648 P.2d 249 (1982), aff'd, 233 Kan. 223, 662 P.2d 1183 (1983).
A probability of exclusion less than 90 percent is of no probative value and should not be before the jury. It was error to have received the evidence.
The cause is remanded to the trial court for further proceedings. The court may, within the discretion conferred by Rule 60.01, order the principals to complete the cycle of serological tests [the five other red blood tests, easily administered and of minimal cost, neglected by the expert in conjunction with the HLA procedure]. State v. Summers, 489 S.W.2d 225, 227[3] (Mo.App.1972). It may be, as often results, that the full combination of tests will yield a probability of exclusion so high as to be probative, without more, of paternity [99.10-99.75 percent "extremely proved"; 99.80-99.90 "practically proved," Scientific and Expert Evidence, at 963 (E. Imwinkelreid 2d ed. 1981) ]; Cramer v. Morrison, 88 Cal. App. 873, 153 Cal. Rptr. 865, 867 (1979); Carlyon v. Weeks, 387 So. 2d 465, 466 (Fla. Dist.Ct.App.1980); Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490, 494 (1982). Whether or not the trial court chooses to exercise discretion under Rule 60.01 to order the supplemental tests usual to such a determination, the defendant is granted a new trial. The expert may then offer an opinion on the likelihood of paternity formulated by the Bayes Theorem from the tests and the other empirical evidence. In any event, that likelihood, however conclusive numerically, shall be submitted to the trier of fact along with all the other trial nonmedical evidence the admissions of the parties as to the intimacies, the times of the copulations, access by other males to the mother during the period of conception, etc. to come to a determination of paternity. Turek v. Hardy, ___ Pa.Super. ___, 458 A.2d 562 (Pa.Super.1983).
The appeal raises another issue, one of evidence. The parties are apprised of the *288 contention and will avoid its vexation on a new trial.
The cause is reversed and remanded for new trial.
All concur.
NOTES
[1] "The antigens of the A, B and C series are detected by serological methods. The D series antigens, in contrast, are detected by complex culture techniques. Since antisera to detect the C antigens are not readily available, most laboratories confine their typing to the A and B series antigens." N. Bryant, Disputed Paternity: The Value and Application of Blood Tests, at 112 (1980). These test limitations, although implicit in the testimony of expert McCalmon, more fully inform the reasons. That the A and B loci are the two loci of the HLA region used to evaluate paternity in well-conducted tests is repeated in all the authorities. See Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J.Fam.L. 543, 545 (1978).
[2] The answer actually given by the expert was: "So the chance or the probability of not being the father is 11 percent, or, the probability of being the father is going to be an 89 percent." That the expert may have meant, not a probability of paternity, but a percentage of exclusion is made clear by further answer: Q: "And what was the percentage of exclusion in this case?" A: "Eighty-nine percent." Q: "All right. And in fact, all of the tests confirmed that there was a possibility that he was the father, and none of them excluded him, is that right?" A: "That's correct." Our discussion shows that in terms of logic, tests or extrapolation, there is no direct relationship between the probability of exclusion and the likelihood of paternity.
[3] We do not say that serologic tests which adduce a mean probability of exclusion of less than 90 percent are without value as evidence. We say only that a statistic of such numerical prominence so exaggerates the probative worth of the evidence as proof of paternity and so obscures the inverse reality that a full 10 percent or more of the male population, at random, could be the actual father as to mislead the finder of fact. In a case where the serologic tests undertaken to prove paternity yield a low probability of exclusion so as to prevent that evidence from use to prove paternity there is nothing to prevent the defendant accused as the father from the use of those results to prove nonpaternity.
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654 S.W.2d 226 (1983)
STATE of Missouri, Plaintiff-Respondent,
v.
Diane LUALLEN, Defendant-Appellant.
No. 12524.
Missouri Court of Appeals, Southern District, Division Two.
May 26, 1983.
Motion for Rehearing Overruled and to Transfer Denied June 17, 1983.
Application to Transfer Denied August 16, 1983.
*227 John D. Ashcroft, Atty. Gen., Janet E. Papageorge, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
*228 Debra Sterling Hans, Asst. Public Defender, Springfield, for defendant-appellant.
Motion for Rehearing Overruled and to Transfer to Supreme Court Denied June 17, 1983.
PREWITT, Judge.
Following jury trial defendant was convicted of felonious restraint. § 565.120, RSMo 1978. Thereafter, she was found to be a "persistent offender", § 558.016, RSMo 1978, and was sentenced to seven years' imprisonment. Defendant was charged with using a butcher knife to force another woman, Dianna Hall, to drive her in a motor vehicle from Springfield to Kimberling City. Hall testified that defendant pulled the butcher knife from a large paper sack and threatened her with it.
Defendant asserts in her first point that the trial court erred in failing to grant her motion for a mistrial because the assistant prosecuting attorney representing the state "brandished a large 14-inch butcher knife: in the first instance, to the assembled panel of veniremen in the hallway of the courtroom; and, subsequently, to the jury during his opening statement."
The record reveals that the following occurred as the prosecuting attorney was relating the evidence in making the state's opening statement:
"[A]nd the defendant pulls a butcher knife, (counsel holding up knife) which I believe the evidence will show that this (indicating) is the butcher knife. She pulls the butcher knife, and tells Dianna Hall, `You're taking me to Kimberling City. I don't want to hurt you, but I will, if necessary. You're taking me to Kimberling City.'"
Following the conclusion of the state's opening statement, defendant's attorney moved for a mistrial on the grounds asserted in this point. The request was denied. The knife was identified as the knife used by defendant and was received in evidence without objection.
The drastic nature of a mistrial requires that it be granted only in extraordinary circumstances where the prejudicial effect cannot be removed in any other way, and such a determination rests largely within the discretion of the trial judge. State v. Dees, 639 S.W.2d 149, 159 (Mo.App.1982). As the knife was subsequently admitted into evidence, we see no prejudice to defendant and cannot say that the trial court abused its discretion in not granting a mistrial. Point one is denied. For her second point defendant contends that the trial court erred in failing to grant her a continuance because of the serious illness of a "material witness" for her. Defendant's mother was involved in a serious automobile accident a week before the trial commenced and was in critical condition in the hospital at the time of trial.
On the morning of trial defendant's counsel made an oral motion for continuance on several grounds, including that defendant's mother was in critical condition. He asked for a continuance "in view of the fact that she may be a witness in this case, and has been a valuable aid to me in the investigation of this case, and has interviewed three or four witnesses, and talked with me on the phone numerous times and supplied me with some tape recordings of her investigation in this matter, giving me the background, and so forth, and in view of the fact that my client is indigent, is in and is in jail, and is unable to investigate the case on her own". Defendant's point is limited to the contention that she was prejudiced because her mother was unable to testify at the trial.
A trial court has broad discretion in granting or denying a continuance, and its decision will not be reversed unless there is an abuse of discretion. Phillips v. State, 639 S.W.2d 270, 275 (Mo.App.1982). Unless a party requesting a continuance because a witness is unavailable shows the materiality of the evidence sought to be obtained and the particular facts the witness will prove, a trial court does not abuse its discretion by denying the continuance. Id. 639 S.W.2d at 275-276. See also Rule 24.10. Before refusal to grant a continuance will constitute an abuse of discretion, a defendant must demonstrate that denial of the continuance prejudiced his defense. State v. Lane, 551 S.W.2d 900, 906 (Mo.App.1977). No facts that the witness might testify to were shown here, nor has defendant shown how *229 the denial prejudiced her defense. The trial court did not abuse its discretion in denying the continuance.
In her third point defendant contends that the trial court erred in overruling her motion for a new trial because after the trial she was advised of evidence that at a new trial would probably produce an acquittal. In her motion for new trial defendant alleged:
"That the Defendant is advised, informed and believes that there are one or two white male individuals who were tenants at the Oak Rest Motel on West Sunshine on the night of August 26 or 27, 1981, who may have seen Defendant with a large paper sack, look in the sack and discovered personal items of Defendant and specifically would testify that there was no large butcher knife contained therein, and that such newly discovered evidence would constitute grounds for a new trial herein."
For defendant to obtain a new trial on the basis of newly discovered evidence, she must show: (1) the evidence must have come to her knowledge after the end of the trial; (2) not learning of it before then was not due to any want of due diligence on her part; (3) the evidence is so material that it will probably produce a different result on a new trial; and (4) the evidence is not cumulative only or merely of an impeaching nature. State v. Dizdar, 622 S.W.2d 300, 303 (Mo.App.1981). Although contending that this was "newly discovered evidence" the motion does not allege that it came to the knowledge of the defendant after the trial ended. However, whether requirements (1), (3), and (4) were met makes no difference here, as clearly there was no allegation or proof of requirement (2). Point three is denied.
Defendant's fourth point contends that the trial court erred in failing to grant a mistrial when a witness for the state, Detective Merrill Coffman, of the Springfield Police Department was permitted to testify as to alias names given by defendant. Defendant commences the argument portion of her brief, stating:
"Detective Merrill Coffman of the Springfield Police Department was allowed by the trial court, over the objection of defendant, to testify as to alias names of defendant (Tr. 344)."
No other reference to his testimony was made in defendant's brief. Page 344 of the transcript is set forth below.[*]
Neither there nor elsewhere in the detective's testimony did he testify to any other names used by defendant nor was any request for mistrial or objection made by defendant during his testimony. By failing to make a timely request for a mistrial defendant has not preserved this point for review. State v. Fanning, 647 S.W.2d 177, 178 (Mo.App.1983). Nor do we see how the matters complained of in this point could have justified a mistrial or how they could constitute plain error. They are not so serious that they could create manifest injustice or miscarriage of justice. See Rule 30.20. This point is denied.
For her fifth point, defendant contends that the trial court erred in failing to specifically inquire of the jury if any member had read or heard any information about the trial because that failure resulted in denying defendant her right to a fair *230 trial. Defendant asserts that on the evening of the first day of trial the Springfield News and Leader published an article concerning defendant's preliminary hearing which "was in fact totally false, as well as being highly inflammatory and prejudicial to the defendant's right to a fair trial. The article in question reported that the alleged victim had testified during the preliminary hearing that the defendant held a butcher knife to her throat on the night of August 27, 1981. This report was patently false and totally inaccurate." Defendant also contends that a similar article was published in the Springfield Daily News the following morning.
At 12:20 p.m. on October 14, 1981, the court declared a recess until 1:30 p.m., and after the jury had left the courtroom, defendant's counsel asked to make a record. Counsel mentioned the newspaper articles, stating that they contained "a false and completely inept review of the preliminary hearing". He stated that he was fearful that one of the jurors may have read it or it was read or mentioned to them. He asked "if the Court might inquire, specifically, whether they've had any trouble following the admonitions of the Court, specifically, regarding any newspaper articles." See MAI-CR 2d 1.08(a).
After further discussion, counsel further suggested to the court that the inquiry might be worded, "Have you had any difficulty following them, [the court's instructions] and have any articles been read to you, or anything been discussed". The judge stated that he would make that inquiry if counsel would remind him to do so when the jury came back from the luncheon recess.
Nothing further is shown in the record pertaining to the articles until 6:15 p.m. when the jury was excused for the evening. The trial judge cautioned the jury against reading any newspaper account of the trial or watching television, listening to the radio, or talking to anyone about the case. He then stated, "I might ask, in that connection, whether or not any did any of you have any difficulty with that last night?" There was no response and then the judge stated that, "I take it all of you did follow the Court's admonition and and did not violate the Court's order?" There was no response to that.
No further request for relief regarding the articles was made and the record does not show that either came to the attention of any of the jurors. It appears that the trial court attempted to comply with defendant's request without indicating that there were articles about the trial. Mentioning them might have caused some juror to search them out. Had defendant felt that other relief was appropriate, defendant should have pursued it. By not requesting further relief, defendant expressed apparent satisfaction with the action taken by the trial court, and her point is not preserved for appellate review. See State v. Lane, supra, 551 S.W.2d at 907-908; State v. Woolford, 545 S.W.2d 367, 372 (Mo.App. 1976); State v. Platt, 525 S.W.2d 637, 641 (Mo.App.1975). Point five is denied.
The judgment is affirmed.
MAUS, P.J., and HOGAN, J., concur.
NOTES
[*] Q. Why did you send her home on the 27th?
A. She was extremely nervous, crying, and she was just too upset to take a statement from at that time, in my opinion.
Q. To your knowledge, is this defendant in any way related to Bill McBee?
A. Not that I could determine. They was boy friend and girl friend.
Q. You did investigate that, didn't you?
A. Yes, sir.
Q. Did you include in your synopsis that at one time the defendant gave her name as Diane McBee?
A. She never did talk to me.
Q. Okay.
A. The other names came from what the officers when they talked to her.
Q. Okay. Was that in your synopsis?
A. I don't think so.
MR. AIKEN: No further questions.
RECROSS EXAMINATION
Q. (By Mr. Wampler) Detective Coffman, it's it's the fact, is it not, that your synopsis in this case, which is about five pages, single spaced, is probably the most important document that you prepared, because it contains the raw data of your personal interview with the alleged
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189 A.2d 679 (1963)
PENNSYLVANIA COMPANY, a corporation of the Commonwealth of Pennsylvania, Plaintiff,
v.
WILMINGTON TRUST COMPANY, a corporation of the State of Delaware, and J. Russel Coulter, Trustees under the Will of George P. McNear, Jr., deceased, Defendants-Third-Party Plaintiffs,
v.
Elizabeth M. McNEAR et al., Third-Party Defendants.
Court of Chancery of Delaware, New Castle.
March 1, 1963.
*680 John J. Morris, Jr., of Morris, James, Hitchens & Williams, Wilmington, for plaintiff.
Aaron Finger and Robert H. Richards, Jr., of Richards, Layton & Finger and William S. Potter and James L. Latchum, of Berl, Potter & Anderson, Wilmington, for defendant, Wilmington Trust Co., Trustee.
H. James Conaway, Jr., of Morford, Young & Conaway, Wilmington, and Philip W. Tone, of Thompson, Raymond, Mayer & Jenner, Chicago, Ill., for defendant, J. Russel Coulter, successor trustee.
Clair John Killoran and E. Dickinson Griffenberg, Jr., of Killoran & VanBrunt, Wilmington, and Stuart S. Ball, Richard J. Flynn and James G. Archer of Sidley, Austin, Burgess & Smith, Chicago, Ill., for adult third-party defendants.
David Snellenberg, II, of Killoran & VanBrunt, Wilmington, Guardian ad litem for minor third-party defendants.
*681 SEITZ, Chancellor.
This is the decision, after submission of briefs by the parties, on the form of order to be entered in this case. In its opinion on the merits this court said, "The Trust Company must bear the burden of a surcharge in an appropriate amount because of its failure to act at an earlier time when it could admittedly have escaped any claim of liability by Pennsylvania based on the April 15 agreements." 186 A.2d 751, at 782. The questions presently before the court concern the principal amount of the Trust Company's liability, interest, adjustments for taxes, and payment of costs, counsel fees, and expenses.
I. Principal Amount of Liability
In its earlier opinion the court found that the Trust Company could have withdrawn from the April 15 agreements without possible legal liability at any time before April 27. Prior to that time the Trust Company had received Heineman's offer of $133.33 for the TP & W stock, which exceeded by one-third the amount which the trustees had previously agreed to accept from the other parties on April 15. The Trust Company was found to have committed two separate breaches of trust. First, the Trust Company failed before April 27, to withdraw from the April 15 agreements or to delay their consummation though it was apparent to it that Heineman might well pay a substantially larger amount for the stock. Secondly, the Trust Company had a duty to communicate Heineman's offer to its co-trustee and having failed to do so, deprived Gladson of an opportunity to save the trust estate from the ultimate loss occasioned by its delay in withdrawing from the April 15 agreements.
The Trust Company contends that it is entitled to a "credit" for the amount by which the ultimate selling price ($135 per share) exceeded Heineman's offer of $133.33. Its theory is that there was a single breach of trust involving an improper refusal to sell to Heineman at $133.33 and presumably an improper sale to someone else at a higher price. Thus, it contends, the "loss" resulting to the trust estate from the settlement should be offset by the "gain" arising from the sale at $135.
I cannot agree with the Trust Company's contention. The court's earlier opinion I think clearly indicates that the breach of trust did not lie in the Trust Company's failure to sell to Heineman. It lay rather in its failure to react to the apparent possibility of selling the stock at a much higher price and its delay in withdrawing from agreements which might have bound it to sell at a lower price. Its delay in withdrawing placed it in the position of having to compromise Pennsylvania's claim based on one of these agreements. But its subsequent withdrawal from the agreements after April 27, and its sale to Santa Fe at $135 did not result in a "gain" to the trust estate. By selling at $135, it only achieved what it presumably would have achieved had there been no earlier agreement at all. Thus, under either breach of trust the Trust Company is not entitled to a "credit" for selling the stock at a price in excess of $133.33. The settlement sum paid to Pennsylvania was a dead loss to the trust estate caused by the Trust Company's failure to act with the care required of it by the Delaware statute. It decreased the amount which would otherwise have been realized from the sale of the stock at $135 per share. Thus, the principal amount of the Trust Company's liability is $500,000.
II. Interest
Having determined that the Trust Company is chargeable for the full $500,000, the only issue I am confronted with under this head is the rate of interest to be paid thereon. It is agreed that interest is due the trust estate from the date of payment to Pennsylvania.
The Trust Company objects to the beneficiaries' request for interest at the legal rate of six per cent. It concedes that the *682 matter is largely one in the court's discretion but contends that in the absence of fraud or bad faith the amount of interest should approximate what would otherwise have been received by the trust as income but for the trustee's dereliction. It points out that the aggregate interest earned by the remaining trust property during this period was slightly under three per cent.
I start with the proposition that the amount of interest should at a minimum restore to the beneficiaries the income that they otherwise would have received. The beneficiaries contend, however, that three per cent would be inadequate here for the reasons that:
(a) the low rate of return on the other trust property was the result of substantial investment by the Trust Company in tax-free securities and any recovery of interest here would be subject to depletion by federal income taxes.
(b) the trust estate incurred certain expenses in liquidating trust property in order to obtain funds to pay to Pennsylvania under the settlement which will not otherwise be recovered.
(c) the trust estate has been deprived of any opportunity for appreciation with respect to $500,000 of capital.
I am persuaded that the beneficiaries are entitled to interest at a rate sufficient to give them the net amount that they would otherwise have received as income and to restore to the trust estate any amounts expended from corpus. The factor of capital appreciation is one that of necessity cannot readily be computed, but the court gives some consideration to the rate of appreciation of other trust investments.
Since computation of the rate of interest here is subject to certain imponderables which are referred to above, a reasonable accommodation of the conflicting interests is called for. I am persuaded that this is not an appropriate case for the arbitrary imposition of interest at the legal rate of six per cent. I conclude that the allowance of interest at the rate of four per cent will fairly reimburse the trust under the circumstances.
III. Adjustments for Taxes
The Trust Company contends that there is a possibility that the trust estate will obtain a refund or reduction of federal income taxes as a result of the settlement payment to Pennsylvania and that it should therefore receive a credit in that amount. The beneficiaries and individual co-trustee contend that no tax benefit can result and that in any case the Trust Company's liability cannot be reduced by any such purported refund as a matter of law. Inasmuch as the parties are agreed that at the present time the possibility of a tax saving is purely speculative, the decision on this matter will be deferred until the tax problem is resolved.
IV. Costs, Counsel Fees, and Expenses
The beneficiaries and individual co-trustee propose that all the costs of this proceeding both before and after the settlement with Pennsylvania be charged against the Trust Company. They urge that the Trust Company be denied reimbursement from the trust estate for its counsel fees and expenses incurred in this action and in a similar action in the federal district court and ask further that the court reserve jurisdiction to hear and determine their application to have their counsel fees and expenses assessed against the Trust Company.
The Trust Company urges the court to defer its decision on all of these matters for the present time. Since an appeal is indicated on the merits of this action, I believe it is preferable to defer any decision on these matters until disposition of the appeal.
Present order on notice.
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654 S.W.2d 42 (1983)
Hildagarde FAJKUS, Individually, and as Executrix of the Estate of V.R. Fajkus, Appellants,
v.
The FIRST NATIONAL BANK OF GIDDINGS, Appellee.
No. 13626.
Court of Appeals of Texas, Austin.
June 15, 1983.
Rehearing Denied July 20, 1983.
Wendell S. Loomis, Houston, for appellants.
St. John Garwood, Jr., Dabney & Garwood, Houston, for appellee.
Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
*43 PHILLIPS, Chief Justice.
Hildagarde Fajkus, individually and as executrix of the Estate of her late husband, V.R. Fajkus, as plaintiffs below, appeal the trial court's order sustaining appellee First National Bank of Giddings' plea of privilege and ordering the transfer of this cause from Fayette County to Lee County, Texas. We sustain appellants' point of error, reverse the trial court's order, and remand this cause for trial in Fayette County, Texas.
A review of the pleadings filed below reveals that appellants seek to recover title and possession of certain tracts of land in Fayette County, Texas, which they allege were wrongfully foreclosed upon by appellee bank. Appellants claim that appellee bank caused the deceased V.R. Fajkus to execute a note for $161,395.65 secured by a deed of trust on property owned by appellant, Hildagarde Fajkus, as her separate property, or alternatively as her community property, when appellee bank had full knowledge of that fact and further knowledge that the deceased V.R. Fajkus was a person non compos mentis, unable to manage his own property, his own financial affairs, and himself.
Appellants further allege that after the above described note became due and payable, appellee bank, without notice, held a trustee's sale of the property securing the note, at which time appellee bank purchased the parcels of land located in Fayette County for inadequate consideration. Appellants contend that the property had a surface value of more than $250,000, with a mineral value in excess of $1,000,000; and, that appellee bank's adverse claim to the ownership of the land constitutes a cloud upon the title to their property.
In conclusion, appellants pray:
WHEREFORE, your Plaintiffs pray that Defendant be served with citation hereto, and that upon final hearing hereof Plaintiffs have Judgment of title and possession of the property which is the subject matter of this suit, for damages, for costs of Court, and for such other and further relief at law and in equity to which they may show themselves justly entitled. [emphasis added]
Appellee bank contends that 12 U.S.C. § 94 (1945) requires that it be sued only in the County where it is located.[1] Appellants argue that Tex.Rev.Civ.Stat.Ann. art. 1995, § 14 (1964)[2] controls the action since it is one involving title to land, and therefore, "local" in nature and excluded from the federal preemption of 12 U.S.C. § 94 (1945).
In reviewing the United States Code, we find that 12 U.S.C. § 94 (1945) states:
Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases. [emphasis added]
This federal statute's predecessor, which is virtually identical to the present 12 U.S.C. § 94, was interpreted by the United States Supreme Court in Casey v. Adams, 102 U.S. 66, 67-68, 26 L. Ed. 52 (1880), in which the Supreme Court stated:
*44 The federal question in this case is, whether a national bank can be sued in a local action in any other county or city than that where the bank is located .... This [statute], we think, relates to transitory actions only, and not to such actions as are by law local in their character.... We see nowhere in the Banking Act any evidence of an intention on the part of Congress to exempt banks from the ordinary rules of law affecting the locality of actions founded on local things. The distinction between local and transitory actions is as old as actions themselves, and no one has ever supposed that laws which prescribed generally where one should be sued, included such suits as were local in their character, either by statute or the common law unless it was expressly so declared. Local actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated.
Appellee contends Casey v. Adams, supra, is no longer the rule to be followed and, in essence, asks this Court to ignore more than one hundred years of United States Supreme Court construction of 12 U.S.C. § 94. Citizens & Southern Nat. Bank v. Bougas, 434 U.S. 35, 38, n. 4, 98 S. Ct. 88, 90, n. 4, 54 L. Ed. 2d 218 (1977); North America v. Associates of Obstetrics & Female Surgery, Inc., 425 U.S. 460, 461, n. 1, 96 S. Ct. 1632, 1633, n. 1, 48 L. Ed. 2d 92 (1976); Michigan Nat. Bank v. Robertson, 372 U.S. 591, 593, 83 S. Ct. 914, 915, 9 L. Ed. 2d 961 (1963).[3] This we refuse to do since the evident rule is that actions concerning the title and possession of land are suits in rem, "and are to be prosecuted where the thing on which they are founded is situated."
Accordingly, we must overrule appellee bank's plea of privilege, sustain appellants' controverting plea, and in so doing, reverse the trial court's order, if we find that appellants' cause of action is one "local" in character.
The general rule is that any deed, contract, judgment, lien, or other instrument, not void on its face, which purports to convey any interest in or makes any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner. DRG Financial Corp. v. Wade, 577 S.W.2d 349 (Tex.Civ.App.1979, no writ); Best Investment Co. v. Parkhill, 429 S.W.2d 531 (Tex.Civ.App.1968, no writ); Texan Development Co. v. Hodges, 237 S.W.2d 436 (Tex. Civ.App.1951, no writ). And where one has parted with land or an interest therein, which he seeks to recover by attacking the instrument under which he lost title, his lawsuit is one for the recovery of land, and if that instrument is filed of record and for that reason would cloud his title, assuming one could prove its validity, his lawsuit would be one to remove an incumbrance upon the title to the land. Drury v. Lehmann, 602 S.W.2d 314 (Tex.Civ.App.1980, no writ); DRG Financial Corp. v. Wade, supra; Leonard v. W.H. Carter, 389 S.W.2d 147 (Tex.Civ.App.1965, writ dism'd). Universally, subdivision 14 applies when a party has alleged facts which, if established at trial, would entitle him to have a property interest in lands retransferred to him, or where removal of a cloud upon a title is requisite to establishing their rights under the facts of a case. DRG Financial Corp. v. Wade, supra; Leonard v. W.H. Carter, supra; Wallace Investments, Inc. v. Blackstone, 384 S.W.2d 910 (Tex.Civ.App.1964, no writ).
*45 Since appellants seek to "have judgment of title and possession of the property which is the subject matter of this suit," by having the trial court, among other things, declare the lien foreclosed by appellee bank null and void, we hold that appellants' cause of action is clearly "in rem," and therefore, "local" in character as contemplated by the United States Supreme Court's interpretation of 12 U.S.C. § 94 (1945).[4]
Accordingly, we reverse the trial court's order and remand the cause for trial in Fayette County, Texas, the situs of the land now in dispute.
NOTES
[1] 12 U.S.C. § 94 (1945) has been interpreted to be a mandatory venue provision which dictates that a national bank may be sued only in the county in which it operates. Interestingly enough this Court was the first court to so hold in Mercantile National Bank at Dallas v. Langdeau, 331 S.W.2d 349 (Tex.Civ.App.1960). This opinion was reversed by the Texas Supreme Court in Langdeau v. Mercantile National Bank at Dallas, 161 Tex. 349, 341 S.W.2d 161 (1960). The Texas Supreme Court, which had held 12 U.S.C. § 94 to be merely directory and not mandatory, was reversed by the United States Supreme Court which adopted the mandatory rationale of this Court. Mercantile National Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S. Ct. 520, 9 L. Ed. 2d 523 (1963).
[2] Texas Rev.Civ.Stat.Ann. art. 1995, § 14 (1964) states:
14 Lands.Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.
[3] "The roots of this problem reach back to the Banking Act of 1863, 12 Stat. 665, replaced a year later by the Act of 1864, 13 Stat. 99. National banks are federal instrumentalities and the power of Congress over them is extensive. `National banks are quasi-public institutions, and for the purpose for which they are instituted are national in their character, and, within constitutional limits, are subject to the control of Congress and are not to be interfered with by state legislative or judicial action, except so far as the lawmaking power of the government may permit. Van Reed v. Peoples Nat. Bank, 198 U.S. 554, 557 [25 S. Ct. 775, 776, 49 L. Ed. 1161]. Unquestionably Congress had authority to prescribe the manner and circumstances under which the banks could sue or be sued in the courts and it addressed itself to this matter in the 1863 Act.'" Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558-59, 83 S. Ct. 520, 522, 9 L. Ed. 2d 523 (1963).
[4] We must reject appellee bank's contention that art. 1995 is not applicable since appellants have failed to bring the exclusive statutory cause of action, trespass to try title. Since appellants' cause of action primarily alleges that appellee bank's deed to the land in question is voidable, and not void, we hold that trespass to try title is not the exclusive remedy available to appellants. See Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671 (1942); Beaman v. Bell, 352 S.W.2d 923 (Tex.Civ.App. 1962, writ ref'd n.r.e.); Morris v. Ratliff, 291 S.W.2d 418 (Tex.Civ.App.1956, writ ref'd n.r. e.).
The mandatory workings of art. 1995, § 14 are triggered when it is shown that (1) the suit is one to recover land, damages to land, to remove encumbrances upon title of land, or to quiet title; and (2) that the land is situated in the county where the action proceeds to trial. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945). Since it is uncontested that the land is in Fayette County, and we have held the suit is one to recover land by various alleged means, we hold that art. 1995, § 14 mandates the cause to be brought in Fayette County.
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150 Conn. 328 (1963)
JOEL GORDON
v.
UNITED AIRCRAFT CORPORATION ET AL.
Supreme Court of Connecticut.
Argued February 6, 1963.
Decided February 19, 1963.
BALDWIN, C. J., KING, MURPHY, SHEA and ALCORN, JS.
*329 Mark C. Yellin, with whom were Sanford L. Rosenberg and, on the brief, Martin W. Hoffman, for the appellant (plaintiff).
George A. Downing, with whom, on the brief, were Atherton B. Ryan and John W. Allen, for the appellees (defendants).
KING, J.
The plaintiff claimed compensation for an injury which occurred as he was drying himself after taking a shower following a practice basketball game in which he had engaged as a member of a team composed of fellow employees of the defendant employer.
"The burden was on the plaintiff to prove that he sustained an injury, not merely in the course of his employment, but arising out of, that is, caused by, his employment." Triano v. United States Rubber Co., 144 Conn. 393, 396, 132 A.2d 570; Nagyfy v. Miller's Stratford Provision Co., 145 Conn. 726, 139 A.2d 604; D'Angelo v. Connecticut Light & Power Co., 146 Conn. 505, 507, 152 A.2d 636.
The claim of the plaintiff of a causal connection between the injury and his employment was based on two propositions: (a) His injury was caused by the basketball practice. (b) The basketball practice was so connected with his employment that an injury sustained as a consequence of the practice would arise in the course of and out of his employment so as to be compensable. On the second proposition, see Matter of Tedesco v. General Electric Co., 305 N.Y. 544, 550, 114 N.E.2d 33; Lindsay v. Public Service Co., 146 Colo. 579, 581, 362 P.2d 407; 1 Larson, Workmen's Compensation Law § 22.24; and the notes in 115 A.L.R. 993, 996, and in 36 Conn. B.J. 131; see also cases such as Farnham v. Labutis, *330 147 Conn. 267, 270, 160 A.2d 120; Taylor v. M. A. Gammino Construction Co., 127 Conn. 528, 532, 18 A.2d 400; and Stakonis v. United Advertising Corporation, 110 Conn. 384, 387, 148 A. 334.
The defendants, before the commissioner, denied both of the foregoing propositions. The commissioner found, in effect, that the plaintiff had failed to sustain his burden of proof on either issue and accordingly denied compensation. From the affirmance of that action by the Superior Court, this appeal was taken. To prevail, the plaintiff had to prove both propositions, since each was an essential element of his right to compensation. Unless he proved the first, that is, that the basketball practice was a cause of his injury, there would be no occasion for our considering the second.
On the first proposition, the commissioner found that although no definite diagnosis was made as to the plaintiff's injury, it was probably a vascular thrombosis, the exact cause of which is unknown; that there are cases where such a thrombosis has followed violent exercise; and that it may be that the basketball practice precipitated the vascular thrombosis, if in fact that was the plaintiff's injury. It is clear that the findings fell far short of a finding that it was reasonably probable that the basketball practice was a cause of the plaintiff's injury, even if we assume that they amounted to a finding that it was reasonably probable that the plaintiff's injury was a vascular thrombosis. To sustain his burden of proof on this essential element of causation, it was necessary that the plaintiff prove that it was reasonably probable that that element was true. Witkowski v. Goldberg, 115 Conn. 693, 696, 163 A. 413; Madore v. New Departure Mfg. Co., 104 Conn. 709, 714, 134 A. 259.
*331 The plaintiff recognized this basic deficiency and sought over a dozen changes in the finding bearing upon this particular issue of the causal connection between the basketball practice and the injury. The requested changes, none of which was granted either by the commissioner or by the Superior Court, included the crucial findings that it was probable not only that the plaintiff had suffered a vascular thrombosiswhich we have assumed that the commissioner in effect actually did findbut also that this thrombosis had been caused by the basketball practice. The plaintiff renewed his efforts to procure these changes in this court. The uncontradicted, but not undisputed, testimony of the plaintiff's medical witness, a neurosurgeon, was weak, and the uncertainty and inconsistency which it exhibited were reflected in the findings of the commissioner, as previously summarized. There is nothing to indicate that the defendants admitted the accuracy of any of the subordinate facts sought to be added to the finding or that the finding as made was so unreasonable as to justify judicial interference. The citation by the court of Leszczymski v. Radel Oyster Co., 102 Conn. 511, 515, 129 A. 539, removes any doubt that it was applying the correct test in passing on these claimed corrections of the finding. Civitello v. Connecticut Savings Bank, 128 Conn. 621, 625, 25 A.2d 47. Of course, the mere fact that the neurosurgeon's testimony was uncontradicted does not make it undisputed, particularly in the face of the denial of the defendants that there was any causal connection between the basketball practice and the injury. Although we cannot say that certain isolated fragments of the testimony of the neurosurgeon, had they been credited by the commissioner, would not have supported a finding *332 by him that the basketball practice was a cause of the injury, they fell far short of requiring such a finding, either by the commissioner or by the Superior Court on appeal, especially in view of the weakness, uncertainty and inconsistency in the witness' testimony as a whole. Triano v. United States Rubber Co., 144 Conn. 393, 397, 132 A.2d 570; Greenberg v. Electric Boat Co., 142 Conn. 404, 408, 114 A.2d 850. We cannot find error in the refusal of the court below to change the commissioner's finding on this crucial issue of causation.
On the finding as made, there was no error in the commissioner's award denying compensation. D'Angelo v. Connecticut Light & Power Co., 146 Conn. 505, 508, 152 A.2d 636. Since the case was fully heard by the commissioner on the uncontradicted evidence of the plaintiff's own medical witness, there is no reasonable ground for believing that a remand to the commissioner for further proceedings would be of any benefit to the plaintiff. Ibid.; Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 93, 167 A.2d 458.
Since this holding is dispositive of, and fatal to, the appeal of the plaintiff, his other claims of error require no discussion.
There is no error.
In this opinion the other judges concurred.
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150 Conn. 321 (1963)
AL KNAPP
v.
NEW HAVEN ROAD CONSTRUCTION COMPANY
Supreme Court of Connecticut.
Argued January 2, 1963.
Decided February 19, 1963.
BALDWIN, C. J., KING, MURPHY, SITEA and ALCORN, JS.
*322 John J. Resnik, with whom, on the brief, was Nathan A. Resnik, for the appellant (defendant).
Joseph P. Nucera, with whom, on the brief, was Gerard S. Spiegel, for the appellee (plaintiff).
KING, J.
This case grows out of a contract entered into on May 22, 1953, between Colby Estates, Inc., hereinafter referred to as Colby, a development corporation, and New Haven Road Construction Company, Inc., hereinafter referred to as New Haven. The contract recited that Colby had contracted with Alson F. Knapp, the plaintiff in this action, for the construction of certain roads in a development owned by Colby, that Knapp was unable to perform his contract according to its terms, that Colby was willing to release Knapp from any *323 liability under that contract and that Knapp was willing and had agreed to release Colby from any liability due or owing to him under his contract. The contract then provided that New Haven (1) would finish the construction project commenced by Knapp which in its entirety involved the building of 69651/4 feet of roadway and (2) should receive therefor, from Colby, $3.40 per running foot. It was further agreed that Knapp had been paid $7367.50 by Colby and that upon completion of the contract work Colby would pay New Haven "only the further sum of $16,314.35, plus the sum of $280.00 for extras."
In a separate paragraph of the contract, New Haven agreed to pay to the Trumbull Sand and Gravel Company the sum of $2547, and to the Connecticut Distributing Corporation the sum of $1235.48, for gravel and oil supplied to Knapp. The finding does not disclose whether the oil and gravel had been wholly consumed by Knapp in his part performance of his contract with Colby or whether New Haven had received or was intended by the parties to the contract to receive the benefit of those materials in completing the work under the new contract. In another separate paragraph immediately following, New Haven agreed that if either the Trumbull Sand and Gravel Company or the Connecticut Distributing Corporation should bring suit against Colby to recover the sums owing to them, New Haven would undertake the defense of the suits and hold Colby harmless from any liability or obligation arising as a result of their claims. Under what theory Colby would be liable to either of the suppliers is not disclosed, and it does not appear that either supplier has sued Colby or any other party to the contract.
*324 In the present action, in which he recovered judgment, Knapp, as the sole plaintiff, sued New Haven, as the sole defendant, claiming that New Haven failed to pay the amounts it agreed, under the terms of the contract, to pay to him or to the two suppliers, the Trumbull Sand and Gravel Company and the Connecticut Distributing Corporation. Whether any payments had been made by New Haven to either supplier does not appear from the finding. The finding does recite that in a so-called stipulation, which does not appear in the record, it was agreed that the amount of the recovery by the plaintiff, if any, should be $3279.35, "plus interest from the date of the obligation."
Knapp was not a party to the contract, and the obligation assumed by New Haven was, on its face at least, to pay the suppliers, not to pay Knapp. Whether the suppliers themselves were third party beneficiaries is a question not involved in the case as presented. See Schneider v. Ferrigno, 110 Conn. 86, 147 A. 303. Neither of the two suppliers nor Colby, the promisee in the contract, is a party to this action. Knapp's right of recovery, according to the theory upon which the case was pleaded, tried and decided, depended upon a showing that Knapp was in some way a third party beneficiary. Cf. Sanders v. Black, 136 Colo. 417, 318 P.2d 1100, discussed in 4 Corbin, Contracts § 795 (Sup. 1962, p. 43), with Harvey v. Lowry, 204 Ind. 93, 183 N.E. 309, discussed in 4 Corbin, Contracts § 796, p. 156.
It was the burden of the plaintiff to prove facts sufficient to show that he himself had a cause of action. It is not enough for him to prove a cause of action on the part of Colby; nor on the part of the two suppliers, whether as third party beneficiaries or otherwise. Wexler Construction Co. v. Housing
*325 Authority, 149 Conn. 602, 605, 183 A.2d 262. He is not a third party beneficiary in the usual sense of the term, since the contract contains no express language creating an obligation running to him. His status is distinct from that of the two suppliers. New Haven by an express provision in the contract directly obligated itself to pay the indebtedness apparently owed by someone to each supplier. In this connection, see 4 Corbin, Contracts §§ 779G, 795.
"[T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and ... that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties." Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507; to the same effect are Pavano v. Western National Ins. Co., 139 Conn. 645, 648, 96 A.2d 470; Congress & Daggett, Inc. v. Seamless Rubber Co., 145 Conn. 318, 324, 142 A.2d 137; see 4 Corbin, op. cit. § 777.
The real question before the court was whether it was the intent of the parties to the contract that New Haven should assume a direct obligation to Knapp. If the court reached a conclusion that such an intent existed, the subordinate facts on which that conclusion was based should have been set forth in the finding. Although the memorandum of decision indicates that the court took this approach, its finding contained nothing as to the parties' intention but did contain a conclusion that the contract "created a direct obligation from the defendant to the plaintiff as a third-party beneficiary." If *326 it did create such a direct obligation, it would have to be, under our rule, because the parties to the contract so intended. New Haven, in an assignment of error, attacks the court's conclusion as being without support in the subordinate facts as found. No subordinate facts were found as to the circumstances attending the making of the contract or the motives or purposes of the parties to it. Nor was there any language in the contract itself indicative of an intent that New Haven should assume a direct obligation to Knapp, as distinguished from a direct obligation to Colby or to the suppliers. The finding fails to contain subordinate facts concerning the intention of the parties, and the conclusion attacked must fall. Without this conclusion, the judgment cannot stand.
It is true, of course, that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary. Cf. Gilden v. Singer Mfg. Co., 145 Conn. 117, 118, 139 A.2d 611; McCaffrey v. United Aircraft Corporation, 147 Conn. 139, 142, 157 A.2d 920, cert. denied, 363 U.S. 854, 80 S. Ct. 1636, 4 L. Ed. 2d 1736. The recitals in the contract indicate that some prior contract existed between Colby and Knapp, that Knapp had failed fully to perform it, and that he had, in effect, agreed to its rescission or at least to its termination without liability on the part of either party to the other. See Stern & Co. v. International Harvester Co., 148 Conn. 527, 532, 172 A.2d 614. It is possible that Knapp conditioned his acquiescence in such a termination and in New Haven's completion of the work covered by the contract upon the undertaking of New Haven to make the stated payments to the two suppliers of the amounts apparently owed to them *327 by Knapp. Whether these or other findings could properly have been made cannot be determined from the record. Indeed, whether, if made, they could have supported a conclusion that the intent of Colby and New Haven, in inserting in the contract New Haven's undertaking to pay the two suppliers, was that New Haven should assume a direct obligation to Knapp as well as to the two suppliers, we cannot now determine. This general uncertainty may have resulted from an inadequate presentation of the case. In any event, a new trial must be ordered.
The court found that Colby failed to pay New Haven the sum of $7268.50, which is still owing to it from Colby under the terms of the contract, and that New Haven has fully performed its contract except for the payments to be made to the suppliers. Whether Colby's failure to pay operated to deprive Colby, Knapp or the suppliers of any cause of action they might otherwise have had is a matter which cannot be determined on the present finding and which it does not appear that the court considered. See Tuttle v. Jockmus, 111 Conn. 269, 278, 149 A. 785; Ryan v. Rizzo, 114 Conn. 467, 473, 159 A. 272; Rifkin v. Safenovitz, 131 Conn. 411, 415, 40 A.2d 188; Pavano v. Western National Ins. Co., 139 Conn. 645, 648, 96 A.2d 470; 4 Corbin, op. cit. § 819; 2 Williston, Contracts (3d Ed.) § 395; Restatement, 1 Contracts § 140, illust. 4, 5, & Conn. Annot.; 12 Am. Jur., Contracts, § 298. The governing test is given in cases such as Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481, and Leonard v. Dyer, 26 Conn. 172, 176.
On a new trial careful consideration should be given to the desirability of adding Colby and the two suppliers as parties in order to achieve proper *328 protection against a "double recovery," as more fully explained in 4 Corbin, op. cit. § 824. See also General Statutes §§ 52-102, 52-107, 52-108; Baurer v. Devenis, 99 Conn. 203, 215, 121 A. 566.
The other assignments of error cover matters not likely to recur on a new trial and need not be discussed.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.
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78 N.J. Super. 472 (1963)
189 A.2d 441
RAY PARKER, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF EMMA PARKER, DECEASED, PLAINTIFF-RESPONDENT,
v.
SAMUEL L. GOLDSTEIN, ET AL., AND HARRY BOFFMAN, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued January 14, 1963.
Decided March 20, 1963.
*473 Before Judges GOLDMANN, FREUND and FOLEY.
Mr. Samuel P. Orlando argued the cause for appellant (Messrs. Gaffey & Webb, attorneys; Mr. Aaron Dines, on the brief).
Mr. Seymour B. Jacobs argued the cause for respondent (Messrs. Balk and Jacobs, attorneys).
The opinion of the court was delivered by FOLEY, J.A.D.
This is a medical malpractice action brought under the Death Act, N.J.S. 2A:31-1 et seq. Defendant Boffman appeals from a judgment of $78,000 entered in favor of the plaintiff in the Law Division on a jury verdict.
Plaintiff's complaint also named Dr. Samuel L. Goldstein and Doctors Hospital, Inc., as defendants, charging each with negligence which contributed to the decedent's death. However, motions for judgments of involuntary dismissal *474 made by those defendants at the close of plaintiff's case were granted. The motion in behalf of Doctors Hospital, Inc. was unopposed; plaintiff does not appeal from the judgment entered in favor of Dr. Goldstein.
In submitting the case against Dr. Boffman to the jury, the trial court, for the purpose of clarity, separated plaintiff's cause of action into two separate and distinct claims, and charged:
"If you find that Dr. Boffman failed to exercise the proper standard of care of the medical profession in failing to arrange for a Caesarean operation prior to the delivery date and that such failure was the proximate cause of the decedent's death, then you will find for the plaintiff as to claim number one."
and
"* * * if you find that Dr. Boffman on July 31, 1957 had the decedent's consent and failed to exercise the proper standard of care of the medical profession, that is, in failing to arrange for a Caesarean within a reasonable time, and that such failure was a proximate cause of the decedent's death, then you will find for the plaintiff as to claim number two."
When the verdict was announced, the foreman stated that the vote of the jury was eleven to one in plaintiff's favor as to claim number one, and that the jury was unanimous in its finding of liability on claim number two.
Subsequently, defendant moved for a new trial. In a letter opinion, the trial judge granted defendant's motion as to claim number one, holding that "the evidence leads irresistibly to the conclusion that there was no negligence by Dr. Boffman in this regard. It does not appear to the Court that the minds of reasonable men could differ as to this, * * *." This, in effect, was a finding that plaintiff had failed to sustain the burden of proof as to claim number one, as a matter of law. The court denied the motion as to claim number two, holding that there was "ample evidence from which the jury could find that Dr. Boffman deviated from accepted practice of the medical profession on the evening of July 31, 1957, *475 although there were sharp factual disputes." The court also rejected defendant's argument that the verdict was excessive in amount.
This appeal followed. Plaintiff does not cross-appeal (see R.R. 1:2-6), but suggests that since the defendant's notice of appeal states that appeal is taken "from the whole of the final judgment entered in the above entitled action in favor of plaintiff-respondent," it thereby opened "in the Plaintiff's favor that part referable to claim #1 as an additional ground on which the judgment may be affirmed." Plaintiff cites us no authority in support of this contention, nor is the impropriety of the court's disposition of claim number one on the motion for a new trial set down in plaintiff's brief as a question involved in the present proceeding.
Lastly, plaintiff does not argue in his brief that the trial court erred in holding that the proofs did not raise a jury question of defendant's liability on claim number one. See R.R. 1:7-1 (c).
Consequently, we will concern ourselves only with the adjudication of claim number two, and with the subsidiary points raised by the defendant which relate to such determination.
In December 1956 decedent, then thirty-three years of age, accompanied by her husband, plaintiff herein, consulted Dr. Goldstein with reference to a suspected pregnancy. The doctor had previously delivered her of a child by Caesarean section. His examination disclosed that decedent was pregnant and he told the couple that a Caesarean would again be necessary.
The Parkers consulted Dr. Goldstein twice thereafter. On the second occasion the doctor told them that he "was kind of ill, that he would have to go away for a rest," and then introduced them to Dr. Boffman who took over the case. They saw Dr. Boffman twice after that. During the second of these visits, according to plaintiff, the doctor told him that he would let plaintiff know when he should bring Mrs. Parker back. They did not return to Dr. Boffman's office thereafter, *476 and did not attempt to communicate with him again until July 31, 1957.
Plaintiff testified that during the afternoon of that day his wife awakened him and complained of pain. He said that he then telephoned the defendant and could get no answer. He dressed his two children and again telephoned but received no response. He then took Mrs. Parker and the children to the hospital, arriving at about 6:30 P.M.
Mrs. Parker was admitted as a patient after signing a consent to the performance of any operation or surgical procedure which might be deemed necessary in furtherance of her care and treatment. She was then sent to the labor room and placed in the care of Virginia Puder, a nurse. Mrs. Puder, testifying from her bedside notes which were contained in the hospital chart, said that, when the patient was admitted to the labor room at 6:30 P.M., she stated that she had passed blood clots at home; that some staining was present; that the patient had pain every three to five minutes, thirty seconds in duration; and that an effectual soapsuds enema was administered.
She testified further, that Dr. Boffman visited the patient at 7:30 P.M. and that in her presence the doctor "wanted Mrs. Parker to submit to a Caesarean section. Mrs. Parker wanted a normal delivery and Dr. Boffman was trying to coax her * * * into having the section," but that the patient "was frightened. She didn't want to be operated upon." Neither the hospital chart nor Mrs. Puder's testimony indicate that she was in attendance of the patient thereafter until 11:10 P.M. when she administered 100 mg. of demerol pursuant to the doctor's direction. Mrs. Puder then went off duty and was replaced by nurse Margaret G. Coyle.
Dr. Boffman testified that the last time he had examined Mrs. Parker prior to July 31, 1957 was on June 8 of that year. At that time he found her heart and lungs were pathologically negative, her blood pressure was 130/110, and her weight 310 lbs. He prescribed a reducing diet, told her to return in two weeks for a further checkup, and advised her to *477 go into the hospital a week before the expected date of delivery (August 16) for performance of a Caesarean section. The doctor said also that after June 8 he sent Mrs. Parker a "card" asking her to come in for an examination, and to make arrangements to go to the hospital, but that he received no response to this request.
Turning to the events of July 31, Dr. Boffman testified that after 6:00 P.M. he was informed by telephone that Mrs. Parker was having pains. He told the caller to take Mrs. Parker to Doctors Hospital, and then called Dr. Warren Kauder, a general surgeon with whom he had previously arranged to perform the expected operation. Soon after he went to the hospital, arriving at between 7:00 and 7:30 P.M. He testified:
"When I entered the labor room the only ones that were in the labor room was the patient, Mrs. Parker, and the nurse, Mrs. Puder. When I entered the room I said to Mrs. Parker, `So, you are here. Why did you not answer my card?' She didn't say anything because at that particular time she had another pain.
And I said to her, I said, `Okay, let me do an examination and get you ready for an operation.' She turned over and Mrs. Puder dressed her; that is, put a sheet over her and I examined her rectally. At the time of the examination there was only one finger that could be admitted in the opening of the womb.
I said to Mrs. Parker, I said, `We are going to get ready for your Caesarean operation.' And she said to me, `Doctor, I don't want an operation. I want to have this baby normally.' I said to Mrs. Parker, I said, `You were scheduled for an operation, Mrs. Parker, and if you have your operation now you can alleviate all these pains that you are having.' I said, `You have already consented to an operation.'
She said, `I know, but I don't want an operation. I'm scared, Doctor, please let me try to have this baby normal because I want to have it normal,' at which time I walked out."
He said that he then telephoned Dr. Kauder, and also unsuccessfully attempted to reach Mr. Parker at a telephone number inscribed in the hospital chart. Shortly thereafter, he examined the patient again and urged her to have the operation and she refused. She said she wanted the baby normally and that she was afraid of an operation. He left the hospital *478 between 8:15 and 8:30 P.M., went to his office which was three or four blocks away, and returned at about 10:00 P.M. The following transpired:
"I went in and asked Mrs. Parker, `Are you ready to consent for the operation?' She said, `No, Doctor, let me try to have this baby normally because I want to have it normally. I'm afraid of an operation.' And I said to Mrs. Parker, `You are wasting time, Mrs. Parker. Why don't you consent to the operation.' I didn't want to insist because this was a woman who was excited, scared to death. I didn't want to frighten her any more and at the same time I tried to get her to have this operation because I knew that she needed the operation. Then I made a subsequent rectal examination."
Further physical examination of the patient revealed that no progress toward birth had been made. At about 11:00 P.M., according to the doctor, he again told Mrs. Parker that she must have the operation, pointing out that she had been in the labor room since 7:30 P.M. having labor pains every five or ten minutes without making progress, and that if the Caesarean was deferred the baby would be unable to survive the extended period of labor. Again the patient insisted that she wished "`to still try to have this baby normally'" and that she did not "`want to be cut.'" He again examined her and left the room.
He returned between 11:15 P.M. and 11:45 P.M., told Mrs. Parker that she was wearing herself out, and would not be in any condition to have the operation. When she asked, "`Why can't I have this baby?'" he told her that she could have it if she submitted to the Caesarean. She then said, "`All right, go ahead.'"
He then told nurse Coyle to prepare for the Caesarean and telephoned Dr. Kauder between 12 midnight and 12:30 A.M. He testified also that it takes about one hour to one and one-half hours to prepare the operating room late at night, and to arrange for the attendance of an operating room nurse, who is on standby service, and an anesthetist.
Dr. Kauder and the anesthetist arrived in due course and the patient was taken to the operating room where a spinal *479 anesthetic was administered. According to the hospital records, at 12:55 A.M. Mrs. Parker's pulse weakened. She turned "ashen pale" and her blood pressure dropped to 80/60. Dr. Kauder said she complained of "shortness of breath and being unable to breathe." The anesthetist administered oxygen and "in another minute or so" called to Dr. Kauder that the patient was in extreme difficulty. He administered stimulants and stood by. Within another few minutes the patient had no heartbeat. Dr. Kauder made a very rapid incision into the uterus and delivered the baby within two minutes. He then put his hands into the diaphragm to massage the heart in an attempt to resuscitate the patient.
Mrs. Parker died at 1:13 A.M.; the baby was born at 1:15 A.M.; the cause of death was a pulmonary embolism.
While, as the trial judge noted on the motion for a new trial, there were factual conflicts concerning collateral matters, as, for example, when, where, and how often the defendant had met Mr. Parker, the basic operating facts, as hereinabove related, were not in dispute. Moreover, the hospital records fully substantiate Dr. Boffman's testimony regarding his several examinations of the patient between 7:30 P.M., when he first examined her, and 11:45 P.M. when he directed the nurse to prepare for the Caesarean. And it is significant that the doctor's progress note of 11:00 P.M. contains the information:
"Still advised operation which she refused, but later consented."
Whatever else may be said, there is no room for doubt that the patient withheld permission to perform the operation until 11:45 P.M. or thereabouts, contrary to the doctor's advice. His liability, therefore, must be assayed in the light of acceptance of this crucial fact, since the minds of reasonable men could not differ as to it.
In an action for negligence or malpractice against a physician, the plaintiff ordinarily is required to establish that defendant's treatment or care fell below the standard established *480 and recognized by the medical profession for the indicated condition of the patient, and the standard must be proven by expert medical testimony. Terhune v. Margaret Hague Mat. Hosp., 63 N.J. Super. 106, 111 (App. Div. 1960). The exception to this rule, i.e., a case where the asserted negligence consists of conduct so obviously wanting in reasonable care and skill that it may be so adjudged even by a layman, concededly, is not applicable to the present case. Cf. Becker v. Eisenstodt, 60 N.J. Super. 240, 246 (App. Div. 1960).
The obligation devolving upon plaintiff to prove through expert testimony a deviation by Dr. Boffman from recognized standards as a basis of liability, necessarily included a showing directly, or by legitimate inference, that the departure from a standard was causally connected with the death.
Plaintiff called as an expert Dr. David J. Graubard, a general surgeon whose qualifications to express an opinion in the field of obstetrics were found by the trial judge to be satisfactory. A lengthy hypothetical question was presented to the doctor which contained substantially the facts hereinabove recited, but with two notable exceptions. The doctor was asked to assume that defendant had estimated that the date of delivery would be July 31, 1957. This was based on a note in the hospital record to this effect, made of course, not as an estimate but as a statement of reality. The fact is (and this was known to plaintiff's attorney when the question was presented) defendant's office card of April 6, 1957 indicated August 16, 1957 was the estimated delivery date. As will shortly appear, this misleading assumption directly led to the opinion of Dr. Graubard that the defendant deviated from the standard pertaining to claim number one.
Furthermore, the hypothetical question contained no hint that decedent had revoked permission previously given for the performance of surgery, although plaintiff's attorney must have known that such revocation was a bulwark of the defense. The importance of the effect of this omission on Dr. *481 Graubard's opinion respecting claim number two clearly appears upon the cross-examination of the doctor, later narrated.
In response to plaintiff's hypothetical question, the doctor stated:
"In my opinion, there was a deviation from the normal standard in the care of this patient insofar as knowing fully well that she was a prior Caesarean that the dictum once a Caesarean always a Caesarean applies; and thereafter knowing the estimated date of delivery to be on or about July 31, 1957, at or about two weeks prior to the estimated date of delivery she should have been sent into the hospital to have a Caesarean section done."
and again:
"I will repeat my opinion as before. Number 1: That she should have had a Caesarean two weeks prior; that when she did go into labor on or about July 31, 1957, and when she was admitted to the hospital in labor at or about 6:30 P.M., that once Dr. Boffman knew that she was in the hospital and that she was in labor, a surgeon should have been gotten immediately in order to perform the Caesarean at that particular time. When it had failed that she had gone on into labor for such a prolonged period and with this particular respect I'm a little bit confused. Number 1, with the testimony that was read from the deposition to the effect that the head was presenting. When the head is presenting then an attempt should be made for delivery at that time. If it was a breech and the head was not presenting then a Caesarean was indicated, but we also have further conflict in the hospital records. Number 1, on admission the general condition is stated to be good and that the operating heart and the degenerating condition of the heart with myocardial damage, if it were myocardial damage, then, in my opinion, the spinal anesthesia should not have been given because it was contra-indicated.[*] Local anesthesia could have been attempted at that particular time for a Caesarean operation.
And so, in my whole opinion, it is that from the time of her admission to the hospital until the time of her death it was the deviation of not taking care of this patient in the proper manner to do the Caesarean section at the time of her admission or soon thereafter that led eventually to the death with pulmonary embolism." (Emphasis added)
While, as previously noted, claim number one is not before us, we reproduce the foregoing testimony in detail to demonstrate *482 that the basis of Dr. Graubard's opinion of deviation related entirely to (1) failure to hospitalize Mrs. Parker two weeks prior to the estimated delivery date, and (2) failure to promptly perform the Caesarean when she entered the hospital. As we have pointed out, the first branch of the opinion was founded upon the false premise that the estimated delivery date was July 31, rather than August 16, and the second branch was based on the equally false premise that defendant had Mrs. Parker's permission to perform the operation at all times after her admission, when in fact permission was withdrawn by her when the defendant first examined her at the hospital and, despite defendant's urgings, given only reluctantly four hours later.
On cross-examination, Dr. Graubard conceded that defendant could not properly order the operation performed until decedent consented thereto. Indeed, said the doctor, to do so would have subjected defendant to liability for assault and battery. However, when the refusal of the patient to permit the surgery was brought to Dr. Graubard's attention he stated that "the proper thing for Dr. Boffman to do would have been to advise the patient in the presence of witnesses that he was no longer responsible for her case, and to tell her to get another doctor."
We can readily understand the wisdom of this procedure in protection of a doctor's interests, but do not regard it as a standard of medical treatment, deviation from which subjects a doctor to civil liability, since such procedure obviously bears no relationship whatever to the patient's physical welfare. But even accepting this as a medical concept, we fail to find any causal connection between defendant's failure to withdraw from the case and decedent's demise. There is no indication whatever that had Mrs. Parker been left to her own devices, she would have been able to promptly obtain the services of another physician, or that if she had, she would have granted him the permission to operate which she steadfastly withheld from defendant.
*483 Excluding, as we must, Dr. Graubard's criticism of the injection of the spinal anesthesia by the anesthetist, his expert medical opinion of the malpractice of Dr. Boffman boils down to the premise that defendant was guilty of unwarranted delay in ordering the operation. Turning aside from the manifest inability of defendant to order it without decedent's permission, a more pervading question of proximate causation arises.
The patient died as a result of a pulmonary embolism generically, a blood clot in the blood stream. What caused this condition to come into being? Was it the so-called delay? If so, where is the proof in this case of such connection? If it be found at all, it must be in Dr. Graubard's naked assertion that in the entire complex of the facts as given to him, the course of medical conduct pursued by the defendant "led eventually to her death with pulmonary embolism." There was no word of testimony from the witness to explain the physiological reactions of the decedent to the alleged delay, or of the anatomical effect of the delay on the pulmonary structure of decedent. The opinion, thus, was what is commonly described as a "net opinion."
The "net opinion" has long been the subject of criticism by the commentators. See 2 Wigmore on Evidence, § 682, pp. 805, 808 (3d ed. 1940). In the recent landmark case of Dwyer v. Ford Motor Co., 36 N.J. 487, 494-495 (1962), Justice Francis analyzed the subject thus:
"The legal conclusion of cause and effect is ordinarily dependent upon evidence of medical causation advanced by physician witnesses in the form of opinion based upon the facts and circumstances attending the heart attack. But we repeat that the mere assertion of reasonably probable contributory work connection by a medical witness cannot justify an award. The facts of the situation under examination in their totality must demonstrate causality by the greater weight of the credible evidence. In this area the reasons for the assertion are more important than the assertion itself. [citing case] Explanation of the physiological reactions of the diseased or ailing heart to the work strain in terms of sole or contributory cause and effect must generally be regarded as indispensable. The facts and circumstances surrounding the work effort and the heart attack, the medical opinion *484 as to connection between the two, and the explanation of the connection from a medical viewpoint must coalesce in support of a finding by the greater weight of the evidence that the effort was at least contributorily responsible in some material way for the attack."
While in Dwyer the court was writing in the context of a weight of evidence problem, the basic thesis that an opinion is no stronger than the facts which support it, and the medical explanation of its basis, is apposite here.
Thus viewed, the complete absence of explanation by Dr. Graubard of how, and in what manner, the supposed delay caused or contributed to the pulmonary embolism left an irreparable void in plaintiff's proof. Acceptable medical opinion of causation supported by expert explanation was an integral and indispensable part of plaintiff's case.
Consequently, we are obliged to conclude that plaintiff's case lacked the requisite expert opinion that in the known and uncontrovertible circumstances, defendant violated any medical standard or tenet which was proximately related to Mrs. Parker's death. Accordingly, defendant's motion for a judgment of involuntary dismissal should have been granted.
This determination makes it unnecessary to consider the trial errors which defendant urges as grounds for a new trial. The same is true of defendant's contention that the verdict was excessive.
Reversed, with the direction that judgment be entered in favor of the defendant.
NOTES
[*] It is not claimed that Dr. Boffman was chargeable with any negligence of which the anesthetist may have been guilty.
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200 Pa. Super. 595 (1963)
Wilson Laundry Company
v.
Joos, Appellant.
Superior Court of Pennsylvania.
Argued March 19, 1963.
April 18, 1963.
*596 Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
*597 Roland J. Christy, for appellant.
Harry J.J. Bellwoar, III, with him Bellwoar, Rich and Mankas, for appellee.
OPINION BY ERVIN, J., April 18, 1963:
This is an appeal from the refusal of the court below to open a judgment entered against defendant under a warrant of attorney in a lease.
In July 1958 the defendant entered into a lease, which provided for a term from November 1, 1958 to October 31, 1961, with a provision for an automatic extension on a year to year basis unless 60 days notice was given by either party prior to the expiration of the original three-year period. On September 7, 1961 the defendant sent a notice of termination to the plaintiff-landlord's agent. By letter dated September 11 the plaintiff advised the tenant that the notice of termination was refused as being submitted too late and in such letter stated "In view of the above we will not release you from your legal obligation completely. We feel that it will take some time in which to obtain another tenant; in order that you or we will not be inconvenienced too greatly we will accept a settlement rent collection covering the months of November and December of 1961." The evidence clearly revealed that the defendant never accepted the plaintiff's offer and never paid any rent after the October 1961 rental. At the end of the original term, on October 30, 1961 the defendant delivered the keys to the plaintiff and moved out of the property.
*598 Thereafter the plaintiff made considerable repairs to the premises costing several thousand dollars and by so doing obtained a new tenant for the property for a lease which commenced April 1, 1962 and for a rental of $300.00 a month, the original rental to the defendant having been at the rate of $150.00 a month.
On June 12, 1962 judgment was entered by virtue of the power of attorney in the lease for one year's rental in the sum of $1,800.00, to which was added a collection fee of five per cent and interest, making a total amount of $1,992.00, and from which was subtracted a sum representing mitigation of damages of $875.00, leaving a balance for which judgment was entered of $1,117.00. The court, in dismissing the defendant's petition to open the judgment, was of the opinion that the plaintiff did not give the defendant proper credit for the amount of the rentals which the plaintiff received from April 1, 1962 to October 31, 1962. For this reason it directed that the assessment of damages be amended so that the defendant was not assessed for the rentals which were due and owing on the premises from April 1, 1962 to October 31, 1962. On January 10, 1963 the plaintiff amended the assessment of damages "as per court order of December 17, 1962," which covered rental at $150.00 a month for the months of November and December 1961, January, February and March 1962, or a total of $750.00, to which was added interest and attorney's fee, making a total amount of damages, as amended, as $806.25.
A petition to open a judgment is addressed to the equitable powers of the court, and, if doubt exists as to the real justice and equity of the case, the court below should not be reversed on appeal in the absence of an abuse of discretion: Klein v. Mathewson, 384 Pa. 298, 121 A.2d 577.
The appellant cites a number of cases to show that where a question of fact exists as to a surrender, the *599 matter should be referred to a jury. In the instant case there was no question of fact to be submitted to the jury. It is clear from the appellee's letter of September 11 that the landlord intended to hold the tenant to the term of his lease. It is also clear from the defendant's testimony that he knew this to be the intention of the landlord. There was, therefore, no issue of fact to be submitted to the jury. The sole issue in a case of this kind is whether or not there was evidence of an intention on the part of the lessor to accept the lessee's surrender of the lease. There was no such evidence in this case. In Brill v. Haifetz, 158 Pa. Super. 158, 44 A.2d 311, we quoted with approval what was said in the case of Ralph v. Deiley, 293 Pa. 90, 94, 141 A. 640, "that the burden of showing an acceptance of a surrender is on the lessee `and is primarily a question of the landlord's intention. It is usually a question of fact for the jury (Breuckmann v. Twibill, 89 Pa. 58), but the evidence may be such as to make it one of law for the courts.'"
"Taking possession, repairing, advertising the house to rent, are all acts in the interest and for the benefit of the tenant, and do not discharge him from his covenant to pay the rent." Breuckmann v. Twibill, 89 Pa. 58, 59.
The appellant also argues that judgment may not be entered for unliquidated damages. Here judgment was entered for the entire year's rental of $1,800.00 and this was entirely proper because the lease contained an acceleration clause which gave the plaintiff the right to confess judgment, as was done in this case. It was true that the affidavit of default recited rent due from October 1, 1961 instead of November 1, 1961, but the amount of the rent due was correctly assessed. The defendant's principal contention is that he was entitled to a credit for mitigation of damages for the entire amount of income received by the landlord from the *600 rerental of the property. The rental of the premises under the original lease was for $150.00 a month. Under the lease which commenced April 1, 1962 with the new tenant, the rental which the landlord was to receive was $300.00 per month. The appellant argues that he should be given credit for the full amount of the rentals which the plaintiff received for this period from April 1, 1962 to October 31, 1962, or an amount of approximately $2,100.00, which would then relieve appellant of all liability under his lease. This argument ignores the fact that the landlord, in order to obtain this additional $150.00 per month rental, had to incur expenses in the amount of several thousand dollars in order to put the property in such condition as to obtain a new tenant. Without these expenditures the increased rental would not have been obtained.
The court below allowed the landlord, under the reassessment of damages, to recover rent for the five-month period from November 1, 1961 until April 1, 1962, when the new tenant took possession. This five-month vacancy period was caused by the defendant's withdrawal from the property and the court's action was entirely equitable. No case has been cited by the appellant to justify his position. In none of the cases is it asserted that where substantial improvements have been made by the landlord and because of these improvements the landlord is able to rent the property at a greater amount of rent than the tenant was originally liable for, that the increase in rent should be for the benefit of the tenant.
Appellant also argues that the judgment is void and cites Mars National Bank v. Hughes, 243 Pa. 223, 89 A. 1130, in support of his argument. In that case the plaintiff filed a petition to amend the original declaration and confession of judgment. In the present case no petition was filed by the landlord to amend the original declaration and confession of judgment. In *601 the Mars case the Court said, at page 225: "For errors in the entry of the judgment, or for the correction of clerical mistakes, application should have been made to the court to correct the original judgment to conform to the facts, but this was not done." That is exactly what was done in the present case and the court below, which had jurisdiction of the matter, on its own motion directed the correction of the assessment of damages.
We are of the opinion that there was no abuse of discretion by the court below in refusing to open the judgment in this case.
Order affirmed.
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181 Conn. 254 (1980)
STATE OF CONNECTICUT
v.
RALPH FESTO STATE OF CONNECTICUT
v.
CLIVE RUSSELL
Supreme Court of Connecticut.
Argued March 5, 1980.
Decision released June 24, 1980.
COTTER, C. J., LOISELLE, BOGDANSKI, PETERS and HEALEY, JS.
*255 Charles Hanken, with whom, on the brief, was Joseph Mirsky, for the appellants (defendant in each case).
Richard F. Jacobson, assistant state's attorney, with whom, on the brief, were Donald A. Browne, state's attorney, and Walter D. Flanagan, assistant state's attorney, for the appellee (state).
LOISELLE, J.
Each of the defendants, officers in the Stamford police department, was charged with larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (2) and burglary in the third degree in violation of § 53a-103 (a). A jury found them guilty of first degree larceny but not guilty of third degree burglary. The court sentenced each defendant to three to six years in prison and both defendants appealed.
The defendants raise three issues on appeal: whether the court should have granted their motions for a mistrial or their motions to suppress for failure to disclose incriminating evidence prior to trial despite a court order directing the state to do so; whether their constitutional right to be confronted with the witnesses against them was violated by the state's failure to arrest an accomplice in the crime, thereby permitting him to leave the jurisdiction for parts unknown; and whether the court erred in denying the defendants' motions to set aside the verdicts for insufficient evidence. The remaining issues raised by the defendants in their preliminary statement of issues have *256 not been briefed and are considered abandoned. State v. Hoffler, 174 Conn. 452, 457, 389 A.2d 1257 (1978).
We review first the defendants' claim of insufficient evidence. From the evidence presented the jury could have found the following facts. On June 8, 1975, the Stamford police department received a telephone call from a neighbor of Frederick H. Gibbs to investigate a possible burglary at the Gibbs home in Stamford. The home was situated on a six acre lot which was fairly well wooded. The neighbor had checked Gibbs' home approximately two weeks before that day and the premises appeared secure, but on June 8 he noticed the front door open, tire tracks in the driveway and some furniture missing. When he returned home, he telephoned the police.
The police officer who responded to the call met the neighbor at the Gibbs residence. The officer found the interior of the home in complete disarray and found no furniture except for some mattresses and a couch. There were no indications of forced entry, but the officer noticed the tire tracks. The officer advised the neighbor to contact the police should anything further develop, then left the scene.
On June 16, 1975, that same neighbor heard a truck spinning its wheels in the Gibbs driveway as though it were stuck in the mud. Again he telephoned the police who met him in Gibbs' driveway. The truck, its hood still warm, was registered to William Caputo of Stamford. No one was in the truck at the time. Although a search of the surrounding area was fruitless, the following items were found in the truck: a ladies' handbag containing personal papers which belonged to Karen Festo, *257 Ralph Festo's wife, several articles of clothing including a pair of police trousers with Festo's name inside, a vial of vitamin pills, another ladies' handbag, this one empty, a container of breath mints and a nail file.
The following day, June 17, 1975, three police officers went to Festo's home in Norwalk. Festo said he knew nothing about the Gibbs incident and permitted the officers to search his home. The search revealed nothing. Festo's friend Caputo was there at the time. Festo also told the police that Caputo had told him the police would contact him about the presence of the truck and its contents on the Gibbs property. Festo explained that he and his wife had used Caputo's truck to move from Stamford to Norwalk and that they had left some personal belongings in the truck because they no longer wanted them.
On June 8, 1975, Russell and Caputo rented space at the Westchester Coliseum Antiques Show from an antiques dealer who later testified for the state at trial. She identified the bureau Russell brought to the show as the bureau depicted in a photograph introduced as an exhibit by the state.[1] Gibbs' neighbor also identified the bureau in the photograph as one he had observed in the Gibbs' home. Russell told the dealer that he had the rest of the bedroom set and other furniture available for sale. He set a price of $1000 for the bureau.
*258 On June 12, 1975, Caputo telephoned Ralph Sparan, the buyer for United Housewrecking Corporation in Stamford. United buys and sells used furniture. Caputo told Sparan he had something to sell. When Sparan telephoned Caputo the next day, Russell answered the telephone and made arrangements for Sparan to see a bedroom set. Russell told Sparan to meet him at Caputo's house. When Sparan arrived Russell showed him two beds, two dressers, a highboy, and a night table which did not belong to the set. Russell told Sparan that the furniture belonged to another person, that he was selling it for her and that he was asking $2000 to $2300 but the woman might take as little as $1900. The two men discussed the condition of the furniture. Sparan asked where the mirrors were, then left after saying he would discuss the purchase with his boss. Sparan called Russell later that day to arrange a time for his employer to see the furniture. His employer, a part owner of United, viewed the furniture that same day. Russell told him that the furniture had been in storage and belonged to his grandmother. United's owner offered $1500 and Russell agreed.
Sparan returned with another employee that afternoon to pick up the bedroom set. When he arrived both Festo and Russell were present and made no effort to conceal the fact that they were police officers. Russell signed a receipt for the furniture and Sparan issued Russell a check for $1500. The check was presented to a bank for payment by Ralph Festo between 3 and 5 o'clock that afternoon. A police detective located the furniture with the receipt bearing Russell's name on it on June 28, 1975. Gibbs' personal secretary later identified the furniture at United as items belonging to Gibbs.
*259 On June 28, 1975, Caputo, accompanied by his attorney, made a statement to the Stamford police, and Festo and Russell offered their written resignations, badges, guns, keys and other equipment. Caputo returned several items which had been stolen from Gibbs' home. Festo and Russell told a superior officer, a police lieutenant, that they thought the house was abandoned, that this was the only incident in which they had been involved, that it was an embarrassing situation and that they hoped other members of the department would not suffer because of it. When the lieutenant asked them where Gibbs' metric tools were, Russell answered, "Don't press me on it. I can't get them." On July 1, 1975, the lieutenant telephoned Festo to ask where Gibbs' air compressor was. Caputo returned it that evening, along with an Allard tire and a desk also stolen from Gibbs' home. Festo and Russell were arrested on July 19, 1975.
"`When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt....' Each essential element of the crime charged must be established by such proof... and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture." (Citations omitted.) State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979).
The defendants contend that in view of the evidence introduced on their behalf, the jury could not *260 reasonably have concluded that the evidence was sufficient to support a verdict of guilty beyond a reasonable doubt of first degree larceny. The defendants' evidence may be fairly summarized as follows. Caputo led Festo and Russell to believe that he owned the furniture, and that they could help him sell it at a fair price. Since Festo and Russell worked the evening shift and Caputo needed someone to show the furniture during the day, Russell agreed to meet the prospective buyer from United Housewrecking. According to Festo, when he gave Caputo the $1500, Caputo offered him $100 to share with Russell but Festo refused because Caputo had recently loaned Festo his truck to help him move from Stamford to Norwalk. Both defendants testified that their resignations were submitted under duress and before they discovered that Caputo had incriminated them. According to the defendants, when Caputo tried to retract his statement of the Gibbs incident, the police lieutenant threatened him with arrest and prosecution. The defendants also denied and contradicted several material facts established by the state's witnesses on direct.
On the evidence presented and the reasonable inferences drawn therefrom, as presented above, the cumulative effect of the evidence was sufficient to justify the jury's verdicts of guilty on the first degree larceny charges. State v. Saracino, supra. Although the jury acquitted the defendants on charges of third degree burglary, this does not render their verdicts on charges of first degree larceny unreasonable or illogical. There was ample evidence, both direct and circumstantial, to convince the jury beyond a reasonable doubt; State v. Dubina, 164 Conn. 95, 98, 318 A.2d 95 (1972); and *261 it was within the province of the jury to disbelieve the defendants' version of the facts. State v. Ballas, 180 Conn. 662, 674-75, 433 A.2d 989 (1980). The trial court did not err in denying the defendants' motions to set aside the verdicts for insufficient evidence.
The defendants claim that the state's failure to disclose the existence of items taken by the police from Russell's locker at police headquarters until after the trial began should have resulted in a mistrial, or at minimum, suppression of the evidence. The defendants argue that the state's introduction of the evidence, the defendants' motion to suppress and the court's decision to excuse the jury for more than one week while the motion was heard prejudiced the jury against them and rendered a fair trial impossible.
The parties agree to the facts and circumstances surrounding the state's introduction of the diary, stenographic pad and clipboard taken from Russell's locker. When Russell tendered his resignation as a police officer on June 28, 1975, he surrendered the key to his locker at police headquarters. Two days later the police lieutenant who had accepted his resignation used the key to open Russell's locker. He placed the contents in a cardboard box and delivered the box to the police captain. The contents of the locker remained under lock and key until May 5, 1976.
On August 8, 1975, the court granted the defendants' motions for production and discovery in which the defendants requested, among other things, "Any documents or tangible objects obtained from or belonging to the defendant or obtained from others by seizure or process." The state's reply listed other items in the state's possession, but omitted the diary, *262 stenographic pad and clipboard then in physical possession of the police, because the state's attorney was unaware of these items at the time.
On May 5, 1976, the police lieutenant directed a detective to obtain a handwriting sample from the documents found in Russell's locker.[2] It was apparently then that several incriminating entries in the documents were discovered, including entries for May 14 and May 30, 1975, which noted Gibbs' name, address and license plate number and an entry for June 8, 1975, which indicated an auction in White Plains, New York. The trial began on May 26, 1976. When the state offered these items as exhibits through the detective's testimony defense counsel objected. Defense counsel's stated grounds for the objection were that the state's failure to comply with court ordered discovery and introduction of exhibits which he was not aware of had "taken [the defendants] by surprise" and deprived him and his clients time to review the evidence.[3]
The defendants moved the court to declare a mistrial and to suppress the diary, stenographic pad and clipboard taken from Russell's locker. At no time did the defendants move for a continuance to *263 enable counsel to review and analyze the documents, despite the fact that defense counsel's stated reason for his objection was that "[i]rreparable harm has been done to give me this information at this time." The state's brief indicates that the court afforded the defendants an opportunity for reflection and examination of the evidence, but the defendants did not avail themselves of this opportunity. The court denied both the motions for mistrial and the motions to suppress.
In the absence of a statute or court rule to the contrary, a person accused of a crime is not, as a matter of right, entitled to inspection or disclosure of evidence in the possession of the prosecution. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed.2d 30 (1977); Wardius v. Oregon, 412 U.S. 470, 474, 93 S. Ct. 2208, 37 L. Ed.2d 82 (1973); 2 Wharton, Criminal Procedure (12th Ed. 1975) § 381; annot., 7 A.L.R.3d 8, 22-29.[4] At the time this case was tried, the trial court, pursuant to Practice Book, 1963, § 533B (2) (now Practice Book, 1978, § 741 [2]),[5] ordered the state to disclose documents and other tangible items obtained from *264 or belonging to the defendant. Under Practice Book, 1963, § 533L[6] (now Practice Book, 1978, § 734) the state had a continuing duty to disclose promptly the existence of the items found in Russell's locker and was subject to sanctions for its failure to do so. Section 533L, however, also vests broad discretion in the trial court in determining the appropriate sanction for failure to comply with a discovery order issued pursuant to § 533B.[7] Here, the trial court, in the exercise of its discretion, determined that the appropriate relief in this case was to grant the defendants additional time. The defendants contend that a more severe sanction, mistrial or at minimum suppression of the evidence, should have been imposed.
*265 "`The general principle is that a mistrial should be granted only as a result of some occurrence on the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial. Izzo v. Crowley, 157 Conn. 561, 565, 254 A.2d 904; Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433.' State v. Grayton, 163 Conn. 104, 112, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed.2d 495. Although it is true that `a state's attorney should scrupulously avoid questions of probable impropriety, we recognize that the trial judge is the arbiter of the many circumstances which may arise during a trial; State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689; [and that] [t]he trial court has a wide discretion in passing on motions for mistrial. State v. Savage, 161 Conn. 445, 449, 290 A.2d 221.' State v. Brown, 169 Conn. 692, 703, 364 A.2d 186." State v. Piskorski, 177 Conn. 677, 719-20, 419 A.2d 866 (1979). Suppression of relevant, material and otherwise admissible evidence is a severe sanction which should not be invoked lightly. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).
The purpose of criminal discovery is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial. To achieve these goals and to assure compliance with the rules, the trial court must impose an appropriate sanction for failure to comply. In determining what sanction is appropriate, the trial court should consider the reason why disclosure was not made, the extent of prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances. See State v. Lindsey, supra, 373; State v. Hunt, 118 Ariz. 431, 434, 577 P.2d 720 (1978); 1 Wright, *266 Federal Practice and Procedure, Criminal § 260. Other jurisdictions require a showing of prejudice. United States v. Bridwell, 583 F.2d 1135, 1141 (10th Cir. 1978); State v. Lawrence, 123 Ariz. 301, 303, 599 P.2d 754 (1979); State v. King, 372 So.2d 1126, 1128-29 (Fla. 1979); State v. Cook, 225 Kan. 259, 261-62, 589 P.2d 616 (1979); State v. Smith, 400 A.2d 749, 757 (Me. 1979); Langford v. State, 95 Nev. 631, 635, 600 P.2d 231 (1979); State v. Trail, 255 S.E.2d 900, 904 (W. Va. 1979). The defendants do not claim that the prosecutor's failure to disclose was the result of bad faith. Their failure to request a continuance or to accept the trial court's offer of additional time to investigate and discuss the ramifications of the state's introduction of items found in Russell's locker indicates a willingness to proceed with the trial. The record does not show that the defendants were denied the opportunity to cross-examine witnesses with regard to the exhibits in question. Nor have the defendants shown any resulting prejudice. The trial court did not abuse its discretion by affording the defendants more time to examine and analyze the evidence in lieu of granting their motions for a mistrial and motions for suppression of evidence.
The defendants claim that the state's failure to produce Caputo to testify at trial deprived them of their right to be confronted with the witness against them. Specifically, the defendants contend that the state's failure to issue a bench warrant for Caputo permitted him to flee the jurisdiction without fear of being compelled to return to Connecticut to testify. Caputo left the state after the defendants were arrested but before trial. Efforts by the state through the Stamford police to locate him through *267 acquaintances, his attorney, his family, the F.B.I. and the Columbus, Ohio police department were futile.[8]
A Stamford police lieutenant testified that to obtain the return of Gibbs' property, Caputo was not arrested. The state concedes that Caputo's statement precipitated the arrest of the defendants.
The right to confront and to cross-examine one's accusers, guaranteed in a state trial through the sixth and fourteenth amendments to the United States constitution; Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed.2d 923 (1965); see State v. Bugbee, 161 Conn. 531, 534, 290 A.2d 332 (1971); does not require the state to produce an informer to testify against the defendant at trial; Cooper v. California, 386 U.S. 58, 62 n.2, 87 S. Ct. 788, 17 L. Ed.2d 730, reh. and modif. denied, 386 U.S. 988, 87 S. Ct. 1283, 18 L. Ed.2d 243 (1967); 2 Wharton, Criminal Evidence (13th Ed. 1972) § 421; and certainly does not require the state to secure a bench warrant for an accomplice's arrest to assure his availability at the time of trial. Other than the fact that Caputo was not arrested, the defendants do not rely on any additional facts to support their claim that the state caused Caputo's absence during trial. Furthermore, the defendants have not shown that Caputo's testimony would have exonerated them. Indeed, if his testimony were consistent with his prior statements, both oral and written, to the Stamford police, his appearance as a witness at trial would have been very incriminating to both Festo and Russell. Where the state does not rely on the statements of an accomplice *268 in its case against the defendant, the defendant's right to confront his accuser is not violated by the failure of the state to produce the accomplice at trial. Since there is nothing in the record to indicate that the state introduced into evidence statements made by Caputo before trial, the defendant's sixth amendment right to confrontation was not violated. Cf. Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150 (1900). "The defendant's right to confront witnesses against him is not absolute, but must bow to `other legitimate interests in the criminal trial process.'" State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978), citing Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed.2d 297 (1973). A criminal defendant does not have a sixth amendment right to compel the arrest and subsequent testimony of one whose prior statements played some role in the events which led to his prosecution. There is nothing in the record to indicate that Caputo's absence as a witness deprived the defendants of a fair trial.
There is no error in either case.
In this opinion the other judges concurred.
NOTES
[1] The bedroom set, a Louis XV reproduction more than eighty years old, is distinctive in appearance. Its appraised market value at the time of trial was between $20,000 and $30,000. The pieces are rather ornate with hand painted scenes of cherubs at play in fields and on clouds encircled by carvings in the wood.
[2] The defendants contend that obtaining a handwriting sample was a pretext to gain access to Russell's belongings, because no expert was ever employed to study Russell's handwriting. The state claims the police wanted to examine Russell's handwriting in connection with another matter. Even if the defendant's contention were true, the defendants have never contested the propriety of the state's seizure of these items through the Stamford police, presumably because Russell surrendered possession of the locker and its contents to the police department when he returned his key and never made any claim to the property since then.
[3] Defense counsel originally objected on fourth amendment grounds, but later confined the basis of his objection to noncompliance with court ordered discovery, which is the sole basis of the defendants' claim on appeal.
[4] Although "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment"; Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963); State v. Grayton, 163 Conn. 104, 108, 302 A.2d 246 (1972), cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed.2d 495 (1972); the defendants do not claim that the items seized from Russell's locker at the police department were in any way exculpatory. The parties appear to be in agreement that this evidence could only have been harmful to the defendants.
[5] Practice Book, 1963, §§ 533A through 533S contained rules for discovery in criminal cases which were adopted June 26, 1972, to take effect October 1, 1972. Section 533B, a subsection of § 533A, provides in pertinent part: "MATERIALS DISCOVERABLE BY DEFENDANT AS OF RIGHT. Upon motion made by a defendant, the court shall order the state's attorney or the prosecuting attorney to permit the defendant to inspect and copy or photograph any relevant ... (2) designated books, tangible objects, papers or documents obtained from or belonging to defendant...."
[6] Practice Book, 1963, § 533L provided: "CONTINUING DUTY TO DISCLOSE; FAILURE TO COMPLY. If subsequent to compliance with an order issued pursuant to Sec. 533A and prior to or during trial, a party discovers additional material previously requested or ordered subject to discovery or inspection, he shall promptly notify the other party or his attorney or the court of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with Sec. 533A or with an order issued pursuant to Sec. 533A, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems appropriate."
[7] Other jurisdictions with the same or substantially similar rules of practice have also given the trial courts broad discretion in fashioning remedies for failure to comply with court ordered discovery. Williams v. State, 600 P.2d 741, 742 (Alaska 1979); State v. Lawrence, 123 Ariz. 301, 303, 599 P.2d 754 (1979); Rowley v. State, 394 N.E.2d 928, 930 (Ind. 1979); State v. Cook, 225 Kan. 259, 261, 589 P.2d 616 (1979); State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979); Langford v. State, 95 Nev. 631, 635, 600 P.2d 231, 234 (1979); State v. Locklear, 42 N.C. App. 486, 489, 254 S.E.2d 653 (1979).
[8] Defense counsel did not request a continuance to locate Caputo to testify as a witness for the defense at trial. 3 Wharton, Criminal Procedure (12th Ed. 1975) § 427.
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410 Pa. 336 (1963)
Consolidated Tile and Slate Company
v.
Fox, Appellant.
Supreme Court of Pennsylvania.
Argued January 11, 1963.
March 19, 1963.
*337 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Daniel A. Rothman, for appellants.
David F. Binder, with him Harold W. Spencer and Edward L. Wolf, for appellee.
OPINION BY MR. JUSTICE EAGEN, March 19, 1963:
The plaintiff entered into a written agreement, as a subcontractor, to provide the labor and material for ceramic tile work in an apartment building for which the defendants were the general contractors.[1] This action of assumpsit sought recovery of the balance due under the agreement and an additional sum allegedly due for extra material and labor supplied at the defendants' request and for which they allegedly agreed *338 to pay beyond the sum stipulated in the contract. The jury found in plaintiff's favor in the sum of $32,324.50. Following the denial of a motion for a new trial, this appeal was filed from the judgment entered on the verdict.
No issue is raised as to plaintiff's right to recover an award. The amount thereof is questioned. It is not seriously disputed that a balance of $15,000 remains unpaid under the terms of the original contract. Interest on this unpaid sum is calculated to be an additional $2000. Defendants contend that the terms of the contract precluded plaintiff from collecting for the so-called "extras" and that the trial judge erred in admitting parol testimony in explanation of certain language in the contract which they maintained is clear and unambiguous.
The contract provided, inter alia, that the plaintiff was "to furnish all labor and material . . . in accordance with certain plans and specifications[2] in the possession of the said party of the first part [the defendants], which have been examined by the said party of the second part [the plaintiff]." It further stipulated that, "There shall be no credits for omissions and no extra charges for additions or alterations which may be required to complete the work." The contract was executed on January 29, 1958; before this a set of plans and specifications was placed at the disposal of the plaintiff.
After the work commenced, substantial alterations in the original plans were made. A new set of plans and specifications was prepared by an entirely new architect and the intended use and character of certain floors in the building were radically revised. Whereas, the original plans encompassed that the plaintiff would lay 49,574 square feet of tile, the changes and new plans *339 made it necessary to lay 58,104 square feet of tile, an increase of 17.2% in material, plus incidental labor.
The defendants contend that the originally submitted plans were incomplete; the plaintiff knew that they were subject to modification and additions, and, it was contemplated by the parties that the additional tile work was to be furnished for the original bid price of the plaintiff. We do not so construe the contract.
Admittedly, the defendants' lawyer prepared the agreement. If it is ambiguous and reasonably susceptible of two interpretations, it must be construed most strongly against those who drew it: Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961). Likewise, if the language of the contract is ambiguous and susceptible of two interpretations, one of which makes it fair, customary and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not likely enter into, the construction which makes it rational and probable must be preferred: Wilkes-Barre Township School Dist. v. Corgan, 403 Pa. 383, 170 A.2d 97 (1961), and Heidt v. Aughenbaugh Coal Co., 406 Pa. 188, 176 A.2d 400 (1962). Moreover, if the language of a contract is ambiguous, parol testimony is admissible to aid in its construction: Dowgiel v. Reid, 359 Pa. 448, 59 A.2d 115 (1948); Herr Estate, 400 Pa. 90, 161 A.2d 32 (1960).
What was the meaning of the contractual clause providing, "There shall be no extra charges for additions or alterations which may be required to complete the work"? Did it mean that the defendants could substitute or add an unlimited number of rooms requiring extensive tiling, for rooms requiring no tile as indicated in the original plans? Or did it mean, that the plaintiff agreed to perform any minor alterations to the work required to be performed within the scope of the original contract? The clause is ambiguous *340 in this respect, and parol evidence was properly admitted to aid in its construction. The testimony of the president of the plaintiff corporation with respect to the clause in question was as follows:
"BY MR. SPENCER: Q. Now Mr. Dougherty, you have heard what the Judge has said and you have heard the talk between counsel here. Did you discuss the meaning of that particular provision with Mr. Fox before you signed the contract or at the time you signed it? A. Yes, sir, I did. . . . Q. What was the discussion? A. The discussion was the omissions and additions were that if it ran around 30, 40, 50 feet of tile, either way, that we would not include any billing either way, so he agreed and I agreed to that. Q. Sometimes is it necessary to change a door here or opening there? A. Oh yes. It could mean 40 or 50 feet of tile which we would not bill or he would not bill. Q. Did you discuss that and then the contract was signed? A. That is correct." The foregoing testimony was in consonance with a reasonable interpretation of the relevant clause, and was believed by the jury as evidenced by its verdict. Under the circumstances, its admission was not error.
Appellants further argue that since plaintiff was obligated to do work included in the claim for "extras" under the original contract, that any subsequent promises made by the defendants lacked consideration. As previously indicated, the changes and additions were very substantial; they undoubtedly included work and material outside the scope of the original contract. Any other conclusion would be unreasonable. The construction of the contract urged by the defendants certainly taxes one's common sense.
It is beyond argument that parties may always modify a written contract previously entered into: Wagner v. Graziano Const. Co., 390 Pa. 445, 136 A.2d 82 (1957). Parties to a written contract may always show that it was subsequently modified, changed or a *341 new one substituted for it. This may be established by parol evidence showing either an express agreement or actions necessarily involving the alterations. Achenbach v. Stoddard, 253 Pa. 338, 98 A. 604 (1916); Fisher v. Warakomski, 381 Pa. 79, 112 A.2d 132 (1955); Wagner v. Graziano Const. Co., supra; Bartl v. Crawford Door Sales Co., 394 Pa. 512, 147 A.2d 399 (1959). Herein, the modification of the contract was shown by both an express agreement and by actions necessarily involving the alterations, and the plaintiff is entitled to be compensated for the work made necessary by that modification.
Finally, we find no merit in the contention that the verdict was excessive.
Judgment affirmed.
NOTES
[1] The defendants also owned the property.
[2] Emphasis supplied.
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2 S.W.3d 659 (1999)
Margaret E. TIBBETTS, Appellant,
v.
Michael GAGLIARDI, M.D., Robert Stephen Grayson, D.O., Turuvekere H. Jayaram, M.D., Kirit K. Pandya, M.D., and Kirit K. Pandya, M.D., P.A., Appellees.
No. 14-98-00843-CV.
Court of Appeals of Texas, Houston (14th Dist.).
September 9, 1999.
Rehearing Overruled October 28, 1999.
*660 Les Weisbrod, William Arthur Newman, Dallas, for appellants.
David J. McTaggart, Dion C. Ramos, David Wayne Clawater, Houston, for appellees.
Panel consists of Justices YATES, MAURICE E. AMIDEI, and WITTIG.
*661 OPINION
DON WITTIG, Justice.
Margaret E. Tibbetts (Appellant) brought this action against Michael Gagliardi, M.D., Robert Stephn Grayson, D.O., Turuvekere H. Jayaram, M.D., Kirit K Pandya, M.D., and Kirit K. Pandya, M.D., P.A. (individually or collectively as Appellees) for medical malpractice. On Appellees' respective motions to dismiss, the trial court dismissed Appellant's action because of her failure to comply with section 13.01(d) of article 4590i. See TEX.REV CIV. STATS. ANN. art. 4590i, § 13.01(d), (e)(3) (Vernon Pamph.1999). On appeal to this Court, Appellant presents two issues, contending that the trial court erred in (1) dismissing her claims for failing to file adequate expert reports and for failing to timely file expert reports, and (2) awarding attorneys' fees to Appellees. We affirm in part, reverse and remand in part, and reverse and render in part.
Background
When Appellant filed her original petition, she named Dr. Gagliardi and Dr. Grayson as defendants. Thereafter, Appellant filed a first amended petition and second amended petition, adding Dr. Jayaram and Dr. Pandya as defendants.
By statute, the 180-day deadline for filing expert reports to support her claims against Dr. Gagliardi and Dr. Grayson expired on February 25, 1997. However, on November 11, 1996, Dr. Grayson executed a Rule 11 agreement extending Appellant's deadline for filing an expert report to July 7, 1997. On May 16, 1997, Dr. Jayaram also executed a Rule 11 agreement extending Appellant's deadline for filing an expert report to July 7, 1997, the same extension date agreed to by Dr. Grayson. These two Rule 11 agreements did not affect any filing deadlines relative to Appellant's claims against Dr. Gagliardi and Dr. Pandya.
Subsequently, Dr. Grayson and Dr. Gagliardi filed a notice of "stay" because their professional liability carrier was placed in receivership by the Texas Commissioner of Insurance by an order dated April 1, 1997. The notice of stay provides that "all proceedings in which an impaired insurer is a party or is obligated to defend a party in any court in this state ... shall be stayed for six months and any additional time thereafter as may be determined by the court from the date...."
In April 1998, Appellees filed respective motions to dismiss Appellant's action because of her failure to file expert reports in compliance with section 13.01(d) of article 4590i. Appellant responded by asserting that she filed two expert reports relative to her claims against Dr. Gagliardi and Dr. Pandya; she contended that the two reports complied with section 13.01(d) of article 4590i. Alternatively, Appellant responded that if the expert reports were inadequate, it was not due to "conscious indifference."
Appellant responded to the motions to dismiss filed by Dr. Grayson and Dr. Jayaram by contending that the deadline to file expert reports to support her claims against these two doctors did not lapse because of the "stay order" and the respective Rule 11 agreements. Further, relying on section 13.01(g) of article 4590i, Appellant moved the trial court for additional time to file expert reports to support her claims against Dr. Grayson and Dr. Jayaram.
However, the trial court denied Appellant's request, granted Appellees' respective motions and dismissed Appellant's claims with prejudice. The trial court also awarded reasonable attorneys' fees to Appellees.
Analysis
Dr. Gagliardi and Dr. Pandya
Dr. Gagliardi and Dr. Pandya filed their respective motions to dismiss, asserting that the expert reports filed by Appellant were inadequate because they did not comply with the definition of "expert report." *662 The trial court granted both motions. Appellant contends that the trial court abused its discretion by finding the expert reports were inadequate and in finding that Appellant's counsel did not make a "good faith" effort to comply with the definition of "expert report."
Section 13.01(d) of article 4590i provides the following:
(d) Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted:
(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or
(2) voluntarily nonsuit the action against the physician or healthcare provider.
TEX.REV.CIV. STATS. ANN. art. 4590i, § 13.01(d) (Vernon Pamph.1999). If a report is filed, section 13.01(l) states:
(l) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.
...
(r)(6) "Expert report" means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationships between that failure and the injury, harm, or damages claimed.
Id. at § 13.01(l), (r)(6).
Appellant's respective expert reports consist of two letters authored by her counsel, printed on law firm letterhead. The two letters are addressed to a New York doctor, Dr. Selwyn Z. Freed, dated November 25, 1996, and October 21, 1997, respectively. The substance of the two letters is identical. The opening paragraph states that the laws of Texas require an expert report to support a medical malpractice claim be filed within a certain number of days after such claim is filed. In the two letters, Dr. Freed is asked to respond to two questions, concerning whether Dr. Gagliardi and Dr. Pandya, respectively, were "negligent in his care and treatment" of Appellant, to wit: "Based on the definitions [of negligence and ordinary care], was Dr. Gagliardi [and Dr. Pandya] negligent in his care and treatment of Margaret Tibbets." Following the question, there is a blank line for Dr. Freed to indicate either "yes" or "no." Dr. Freed, or someone, marked "yes" on each letter for each defendant doctor. The same format was followed concerning a question about proximate cause. Apparently, Dr. Freed indicated "yes," concerning whether Dr. Gagliardi's and Dr. Pandya's negligence was the proximate cause of Appellant's damages. The two letters conclude by stating, "Because of the rather short time we have in which to file this letter report with the court, I would appreciate your checking the above blanks in accordance with your opinion and faxing it back to this office." The letters are signed by Appellant's counsel, only.
Other than being addressed to Dr. Freed, these purported "expert reports" provide no proof that Dr. Freed is the person who responded to the questions. Even assuming that Dr. Freed is the person who responded to the questions, the two letters completely fail to satisfy the definition on an "expert report." They fail to provide: (1) a fair summary of opinions concerning applicable medical standard of care; (2) a fair summary of opinions describing the manner in which the care rendered failed to meet any applicable standards; and (3) a fair summary of the expert's opinions concerning the causal relationships between the failure and the *663 injury, harm or damages claimed. See TEX.REV.CIV. STATS. ANN. art. 4590i, § 13.01(r)(6) (Vernon Pamph.1999). Therefore, we find that the trial court was correct in finding that these two letters are not "expert reports" as that term is defined by section 13.01(r)(6) of article 4590i. See id.
Appellant asserts that even if the two letters are insufficient to constitute "expert reports," she nevertheless made a "good faith" effort to comply with section 13.01 of article 4590i when she filed the two letters. The trial court is required to grant a motion challenging the adequacy of an expert report if it appears to the court that the report does not represent a good faith effort to comply with the definition of an "expert report." Id. at § 13.01(l). Appellant relies upon her counsel's affidavit in support of her good faith effort. Appellant's counsel states that at the time she filed the expert reports, "it was an oversight on my part not to notice the definition of `expert report.' I was not consciously indifferent with regard to these reports."
Section 13.01(a)(3) requires that an expert report be filed to support a medical malpractice claim. TEX.REV.CIV. STATS. ANN. art. 4590i, § 13.01(a)(3) (Vernon Pamph.1999). In addition, section 13.01(r)(6) of this same statute specifically defines "expert report." Id. at § 13.01(r)(6). Appellant's counsel even cited the statute on the cover sheet attached to the reports she filed.
The statement that she was not consciously indifferent is a merely a conclusion and provides no evidence of a "good faith" effort. See Clark v. University of Houston, 979 S.W.2d 707, 711 (Tex. App.-Houston [14 th Dist.] 1998, no pet.). Likewise, her statement that she did not act in bad faith is conclusory. See id. Counsel's affidavit establishes that she failed to read the statute carefully, or not at all, because the statute, cited on the cover letters attached to the letters, specifically defines "expert report" and provides what the report must contain. Dr. Gagliardi's counsel even extended the professional courtesy of explicitly informing Appellant's trial counsel by letter of January 29, 1997, that the so-called expert report was wholly inadequate under the statute.[1] We find no abuse of discretion; the trial court did not act unreasonably or arbitrarily in finding Appellant's counsel failed to make a good faith effort to comply with the definition of "expert report."
We overrule Appellant's issues concerning the trial court's decision to dismiss her respective claims against Dr. Gagliardi and Dr. Pandya.
Dr. Grayson and Dr. Jayaram
Prior to the expiration of the original 180-day deadline, Dr. Grayson and Dr. Jayaram executed respective Rule 11 agreements, extending Appellant's 180-day deadline to file expert reports to July 7, 1997. A "stay" was imposed on Appellant's claims on April 1, 1997, because Dr. Grayson's professional liability insurance carrier was placed in receivership. Thus, the agreed deadline in the two Rule 11 agreements expired during the period of the stay. Thereafter, both Dr. Grayson and Dr. Jayaram filed motions to dismiss, contending that Appellant failed to timely file expert reports to support her claims against them. The trial court granted both motions.
*664 Appellant maintains that the "stay" caused by the insurance company receivership was in effect until February 19, 1998, when the trial court entered its new scheduling order. She contends that she was entitled to an additional period of time to file expert reports to support her claims against Dr. Grayson and Jayaram after the stay was lifted on February 19, 1998.
We note that the Texas Insurance Code mandates an automatic stay on proceedings when an insurance company is placed in receivership. See TEX. INS.CODE ANN. art. 21.28-C, § 17 (Vernon Supp.1999); Burrhus v. M & S Mach. & Supply Co., Inc., 897 S.W.2d 871, 873-74 (Tex.App.-San Antonio 1995, no writ); Willard v. Davis, 881 S.W.2d 907, 911 (Tex.App.-Fort Worth 1994, orig. proceeding). Specifically, the code provides the following:
All proceedings in which an impaired insured is a party or is obligated to defend a party in any court in this state, except proceedings directly related to the receivership or instituted by the receiver, shall be stayed for six months and any additional time thereafter as may be determined by the court from the designation of impairment....
TEX. INS.CODE ANN. art 21.28-C, § 17 (Vernon Supp.1999) (emphasis added). A stay under this provision of Insurance Code is analogous to a bankruptcy stay. Burrhus, 897 S.W.2d at 872. An automatic bankruptcy stay prohibits the beginning or continuing of any judicial actions or proceedings against the debtor during the pendency of bankruptcy proceedings. See 11 U.S.C. § 362(a)(1) (West 1993 & Supp. 1999).
The stay applied to Appellant's action against Dr. Grayson because his professional liability carrier was placed in receivership during the pendency of Appellant's malpractice action. Regardless of whether the stay specifically applied to Appellant's action against Dr. Jayaram, an issue we do not decide, in his Rule 11 agreement, he nevertheless agreed to suspend the expert report deadline until the stay was lifted.
By statute, the stay was effective for at least six months and any additional time thereafter as may be determined by the court from the date the stay was ordered. See TEX. INX.CODE ANN. art 21.28-C, § 17 (Vernon Supp.1999). Dr. Grayson and Dr. Jayaram, respectively, contend that the stay lifted on October 1, 1997, six months after the date the stay was ordered, April 1, 1997. However, there is nothing in the record before this Court to indicate that the stay was lifted on October 1, 1997. The record is devoid of any judicial order lifting the stay. To the contrary, the record reveals Dr. Pandya's trial counsel, speaking as all counsel must, as an officer of the court, wrote a letter to Appellant's trial counsel stating the stay was extended until February 19, 1998. Similarly, the trial court's docket sheets contain a notation stating that the stay was lifted on February 18, 1998. Further, the trial court entered a new scheduling order in this case on February 19, 1998, strongly suggesting that the court determined that for the purposes of Appellant's malpractice action, the stay was lifted on that date. See TEX. INS.CODE ANN. art. 21.28-C, § 17 (Vernon Supp.1999). Because the Insurance Code stays "all [judicial] proceedings" during the pendency of a stay order, Appellant was not required to file export reports during such period of abeyance. See id.
Section 13.01(g) provides that "if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection." TEX.REV.CIV. STATS. ANN. art. 4590i, § 13.01(g) (Vernon Pamph.1999) (emphasis added). Because the record before us reveals both a stay order in effect until sometime in February 1998, coupled with the Rule 11 agreements extending the *665 deadlines to file the necessary expert reports, we conclude that Appellant's failure to file expert reports was not the result of intentional conduct nor conscious indifference. Additional time should have been granted to Appellant to comply with Subsection (d) of Section 13.01. Thus, we find that the trial court abused its discretion in dismissing Appellant's claims against Dr. Grayson and Dr. Jayaram. See Seckers v. Ocean Chemicals, Inc., 845 S.W.2d 317, 318 (Tex.App.-Houston [1st Dist.] 1992, no writ). We sustain Appellant's issues relating to the trial court's dismissal of her claims against Dr. Grayson and Dr. Jayaram.
Attorneys' Fees and Court Costs
The trial court entered four separate orders of dismissal in this case pertaining to each Appellee. Except for the order of dismissal pertaining to Dr. Pandya, the trial court ordered Appellant to pay "reasonable attorney's fees" and "costs of court" incurred by Dr. Gagliardi, Dr. Grayson, and Dr. Jayaram, respectively. No dollar amount is specified in the orders of dismissal. Appellant contends that in addition to that error, there was no testimony, no affidavits, no billing records, nor anything else in the record to support an award of attorneys' fees. We agree.
A party may not recover attorneys' fees from an opposing party unless expressly permitted by statute or contract between the parties. See Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex.1996). Section 13.01(e)(1) of article 4590i mandates that, upon a plaintiff's failure to comply with section 13.01(d), the trial court shall award the successful defendant reasonable attorneys' fees and costs of court. See TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(d), (e)(1) (Vernon Pamph.1999); see also Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex.App.-Fort Worth 1998, no pet.). However, nothing in section 13.01(e) modifies the general rule that a party seeking attorneys' fees must present evidence of attorneys' fees. See generally TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04, reprinted, TEX. GOV'T CODE ANN. tit. 2, subtit. G app. A (Vernon Supp.1999) (TEX. STATE BAR R. art. X, § 9); Estrello, 965 S.W.2d at 759.
Appellees had every opportunity to present evidence of attorneys' fees and court costs before the trial court closed the evidentiary portion of the hearing and made its ruling. Further, Texas Rule of Civil Procedure 270 allows a trial court to permit additional evidence to be offered at any time when it clearly appears to be necessary to the due administration of justice. TEX. R. CIV. P. 270. Nonetheless, Appellees failed to present any evidence of attorneys' fees and court costs even though it was their motion and hearing.
Accordingly, we conclude that the trial court erred in awarding attorneys' fees in this case. See Estrello, 965 S.W.2d at 759. This is especially true concerning the award of attorneys' fees to Dr. Grayson and Dr. Jayaram because of our holding that Appellant's actions against them should not have been dismissed. We reverse the award of attorneys' fees in this case and render that Appellees take nothing on their claim for attorneys' fees. Thus, we sustain Appellant's issue concerning the award of attorneys' fees to Dr. Gagliardi, Dr. Grayson, and Dr. Jayaram.
The trial court's judgment dismissing Appellant's claims against Dr. Gagliardi and Dr. Pandya is affirmed. The trial court's judgment dismissing Appellant's claims against Dr. Grayson and Dr. Jayaram is reversed, and as to Dr. Grayson and Dr. Jayaram, this matter is remanded to the trial court for further proceedings. The trial court's judgment awarding attorneys' fees to Dr. Gagliardi, Dr. Grayson and Dr. Jayaram is reversed, and we render a take-nothing judgment on their respective claims for attorneys' fees.
NOTES
[1] The purported expert reports filed by Appellant did not even conform to common usage outside of article 4590i (or other specific rules, e.g., TEX. R. CIV. P. 194.2(f)). Within the legal profession, an expert medical report might contain a medical history, diagnosis, prognosis, or opinions and impressions, to include causation. Appellant's "check the blanks" form, falls well short even of the situation described in Horsley-Layman v. S.M. Angeles, M.D., 968 S.W.2d 533, 535-36 (Tex. App.-Texarkana 1998, no pet.). Appellant's cryptic report is also incorrectly focused upon legal standards rather than medical standards.
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46 S.W.3d 328 (2001)
Pamela Sue KUNKEL, Appellant,
v.
The STATE of Texas, Appellee.
No. 14-98-01236-CR.
Court of Appeals of Texas, Houston (14th Dist.).
March 8, 2001.
Rehearing Overruled May 3, 2001.
*329 Christian C. Samuelson, Houston, for appellants.
Kelli Pool Roper, Houston, for appellees.
Panel consists of Justices SEARS, CANNON, and HUTSON-DUNN.[*]
MAJORITY OPINION
CANNON, Justice.
Pamela Sue Kunkel was charged with the misdemeanor offense of driving while intoxicated. After the trial court denied her motion to suppress, Kunkel entered a plea of no contest. The trial court found her guilty and assessed punishment at one year in the Harris County Jail, probated for two years, and a $400 fine. On appeal, Kunkel contends that the trial court erred in denying the motion to suppress because the evidence at issue was the fruit of an unlawful citizen's arrest. We affirm.
Background
At the suppression hearing, Douglas Pittman testified that he was working as a wrecker driver at approximately 2:15 a.m. on May 22, 1998, when he observed a vehicle driven by Pamela Kunkel. He stated that he saw the left two wheels of the car drive onto the center median as she was getting into a left turn lane. She stopped at the red light and, when the light turned green, she made a left turn without a signal. Pittman stated that there were approximately ten other cars at the intersection at that time.
After completing the turn, the vehicle bumped the left curb with its tires. Pittman followed and observed Kunkel's car repeatedly bump the left curb before moving to the right hand lane and bumping the right curb. He estimated that she crossed the centerline of the road about 20 times in a quarter mile. After the turn, Pittman used his phone to call the police and report Kunkel's erratic driving. At this time, there were no other vehicles traveling in the same direction as Kunkel and Pittman.
Kunkel then slowed to about two miles per hour before turning right onto another street. She drove down the center of this street for another quarter of a mile before turning into the entrance of a complex of town homes. Pittman pulled his wrecker in behind her, blocking her car between the wrecker and the entrance gate. As she attempted to insert her key card into the reader, he exited his vehicle and took the card from her hand. When she tried to exit the vehicle, he moved in front of the car door so that she could not have gotten out without pushing him aside. He told her to remain seated and that HPD officers would arrive soon. Police officers arrived on the scene within three minutes and eventually took Kunkel into custody.
Kunkel also testified at the suppression hearing. She acknowledged a certain amount of erratic driving that night but claimed that she had dropped a lit cigarette and was trying to find it before it did damage to her car. She said that she drove down the middle of the road to her town home because the street is sunken and cracked in places.
*330 She also testified that Pittman pulled in behind her when she was trying to put her key card into the reader for the entrance gate. According to her, Pittman grabbed her hand and pulled the card out of it. She said he screamed, "Citizen's arrest. You're not going anywhere," and he blocked her exit from the vehicle. She further stated that when she attempted to move to the passenger side to exit, Pittman started around the vehicle so she just stayed on the driver's side.
The court also heard testimony from two HPD officers on the scene. Sergeant Timothy Kubiak and Officer T.J. Allen both testified that it appeared to them when they first arrived that Pittman was preventing Kunkel from exiting her vehicle. Kubiak further testified that each of the moving violations observed by Pittman was no more than a class C misdemeanor.
At the conclusion of the hearing, the trial court denied the motion to suppress. Kunkel then plead no contest to the charges, and the trial court found her guilty and assessed punishment at one year incarceration, probated for two years, and a $400 fine.
Analysis
Appellant contends that the trial court erred in denying the motion to suppress because the evidence was the fruit of an unlawful citizen's arrest. This issue presents a mixed question of law and fact that does not turn on an evaluation of the credibility and demeanor of the witnesses. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We will, therefore, utilize a de novo standard of review. See id.; Loserth v. State, 963 S.W.2d 770, 773 (Tex.Crim.App.1998).
Article 14.01 of the Texas Code of Criminal Procedure authorizes a private citizen to effect an arrest when a felony or breach of the peace is committed in his presence or within his view.[1] Neither side directly contends on appeal that Pittman did not arrest Kunkel. Indeed, ample evidence was introduced at the hearing to support this implied part of the court's ruling. An arrest is complete when a person's liberty of movement is restricted or restrained. Hoag v. State, 728 S.W.2d 375, 379 (Tex.Crim.App.1987). See also McGuire v. State, 847 S.W.2d 684, 686 (Tex.App.-Houston [1st Dist.] 1993, no pet.)(citizen's arrest case). It is undisputed that Pittman parked his wrecker behind Kunkel's car, trapping it between the entrance gate to the town home complex and the wrecker. He then took her key card out of her hand before she managed to open the gate, and he positioned himself such that she could not exit the vehicle without pushing him out of the way. Kunkel even testified that Pittman started around the vehicle to prevent her from exiting on the passenger side. There was certainly sufficient evidence on which the court could have found that Pittman arrested Kunkel. Furthermore, there has been no allegation that Kunkel committed a felony.
We therefore turn to the question of whether, when the law is applied to the facts, the conduct that Pittman observed amounted to a breach of the peace. See Tex.Code Crim. Proc. Ann. art. 14.01(a); Guzman, 955 S.W.2d at 89. The generally accepted explanation of what constitutes a "breach of the peace" is contained in *331 Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685 (1948), which states in part:
Actual or threatened violence is an essential element of a breach of the peace. Either one is sufficient to constitute the offense. Accordingly, where means which cause disquiet and disorder, and which threaten danger and disaster to the community, are used, it amounts to a breach of the peace, although no actual personal violence is employed.
Id., 213 S.W.2d at 687. In other words, a threat of violence to the community is sufficient to constitute a breach of the peace. See id.; Turner v. State, 901 S.W.2d 767, 770-71 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd).
What constitutes a breach of the peace is to be determined on a case-by-case basis, looking to the facts and circumstances surrounding the act. Turner, 901 S.W.2d at 770. Several courts have found circumstances wherein conduct suggesting that a motorist was driving while intoxicated could be classified as a breach of the peace. See Romo v. State, 577 S.W.2d 251 (Tex.Crim.App.1979); McEathron v. State, 294 S.W.2d 822, 163 Tex. Crim. 619 (Tex. Crim.App.1956); Ruiz v. State, 907 S.W.2d 600 (Tex.App.-Corpus Christi 1995, no pet.)[2]; McGuire, 847 S.W.2d 684.
In the present case, the wrecker driver, Pittman, testified that he saw Kunkel drive the left two wheels of her vehicle onto the center median at an intersection with about ten other cars present. She turned at the intersection and again ran into the center median, repeatedly bumping it with her tires. Then she moved to the right lane and bumped the outside curb. He estimated that she crossed the line dividing the two lanes about 20 times in a quarter mile. She then slowed to about two miles per hour before making a turn. We find that Pittman's testimony regarding such conduct was more than sufficient to support the trial court's determination that Kunkel committed a breach of the peace and that the citizen's arrest was therefore proper. By its very nature, the conduct observed by Pittman, and the crime of which it is symptomatic, may place others on or near the roadway in imminent danger of harm.
The dissent contends that Pittman's testimony was insufficient to demonstrate that Kunkel was committing a breach of the peace because Kunkel committed mere moving violations and erratic driving and did not come close to actually hitting anyone. We agree that a citizen cannot arrest a motorist for individual misdemeanor moving violations. See Pierce v. State, 32 S.W.3d 247, 253 (Tex.Crim.App. 2000). And, certainly, there are different degrees of erratic driving; the lower range of which would not constitute a breach of the peace in most circumstances. Kunkel's behavior in the present case, however, is best described as a series of moving violations accompanied by prolonged erratic driving. The threat and danger to the community was very real.
Furthermore, the dissent fails to cite to any case wherein a court found there was no breach of the peace on evidence of DWI that was as strong as it is here. In the main cases relied upon by the dissent, Pierce, Perkins, and Reichaert, the conduct observed before the arrest can truly be described as simple moving violations or momentary erratic driving. See Pierce, 32 S.W.3d at 248 (swerving in front of another vehicle); Perkins v. State, 812 S.W.2d 326, 329 (Tex.Crim.App.1991)(speeding and running *332 a red light); Reichaert v. State, 830 S.W.2d 348, 352 (Tex.App.-San Antonio 1992, pet. ref'd)(speeding and almost hitting a retaining wall). These cases are, therefore, clearly distinguishable from the present case. Lastly, Pittman's testimony that there were approximately ten other vehicles at the intersection where Kunkel drove over the median demonstrates that, despite the late hour, the area streets were not deserted and people were, in fact, threatened with harm from Kunkel's obviously impaired driving.
We find that the trial court correctly applied the law to the facts in denying the motion to suppress. Accordingly, we overrule this point of error.
In an alternative point of error, Kunkel contends that the trial court erred in failing to suppress all of the evidentiary fruits of her arrest by the police officers because the arrest resulted from an unlawful citizen's detention. As discussed above, there was ample proof presented for the trial court to conclude that Pittman effected a citizen's arrest of Kunkel and not a mere detention. We therefore overrule this point of error.
We affirm the judgment of the trial court.
HUTSON-DUNN, J. dissenting.
D. CAMILLE HUTSON-DUNN, Justice, dissenting.
Because I believe that the conduct observed by the wrecker driver did not constitute a breach of the peace, I respectfully dissent.
A survey of DWI related "breach of the peace" cases reveals a consistent pattern requiring more than simple moving violations or erratic driving to support a citizen's arrest. There must be some demonstration of actual or threatened harm to the community. In Pierce v. State, 32 S.W.3d 247 (Tex.Crim.App.2000), the arresting citizen, Miller, testified that he saw the defendant's vehicle overtake him and then swerve in front causing him to apply his brakes to avoid the defendant's vehicle. On these facts, the court held that the arrest was improper because "the only offense for which Miller could have arrested the appellant was driving while intoxicated [but b]efore he stopped her, Miller had no evidence that the appellant was intoxicated." Id. at 253.
Similarly, in Perkins v. State, 812 S.W.2d 326 (Tex.Crim.App.1991), the court held that speeding and running a red light were insufficient acts to support detaining the driver for a breach of the peace. Id. at 329, n. 4. And, in Reichaert v. State, 830 S.W.2d 348 (Tex.App.-San Antonio 1992, pet. ref'd), the court held that speeding and almost hitting a retaining wall were insufficient evidence on which to arrest someone for a breach of the peace. Id. at 352. Like Pierce, both of these cases involved a police officer outside of his jurisdiction and thus acting as a private citizen. Regardless, the cases are all on point because they specifically deal with the same issue as the present case, i.e. the application and interpretation of the phrase "offense against the public peace" in Article 14.01(a) of the Texas Code of Criminal Procedure.
The cases on the other end of the spectrum, wherein the courts found the citizen's arrest to be proper, further support the proposition that something more than mere erratic driving or moving violations is required. In Romo v. State, 577 S.W.2d 251 (Tex.Crim.App.1979), the defendant drove erratically and committed a traffic violation (speeding), but then also swerved at the arresting citizen's vehicle causing him to drive into the curb to avoid a collision. Id. at 252. In Ruiz v. State, 907 S.W.2d 600 (Tex.App.Corpus Christi *333 1995, no pet.), the defendant committed a traffic violation (driving wrong way on highway), but also caused oncoming motorists to swerve out of his way to avoid a head-on collision. Id. at 604. In McGuire v. State, 847 S.W.2d 684 (Tex.App.Houston [1st Dist.] 1993, no pet.), the arresting citizens (several wrecker drivers) actually witnessed a traffic accident involving the defendant. Id. at 685.
In the present case, Pittman only observed Kunkel drive two wheels over a curb, bumb the curb a couple of times, and cross the center line a few times. Based on Pittman's testimony, the police officers' testified that Kunkel committed only minor moving violations. Furthermore, there was no testimony that any pedestrians or motorists were actually in danger of being hit by Kunkel's vehicle. Pittman's testimony, therefore, does not support the conclusion, as necessary to establish a breach of the peace, that Kunkel's conduct caused anyone to be actually harmed or threatened with harm. See Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685, 687 (1948). Under these facts, there was no immediate threat of danger or disaster to the community and, therefore, no breach of the peace. See Pierce, 32 S.W.3d at 253.
Although private citizens are authorized to make arrests when they observe a felony or a breach of the peace in progress, they are not imbued with general police powers. See Tex.Code Crim. Proc. Ann. art. 14.01(a). A police officer in the proper execution of his duties may have been able to stop and detain Kunkel that night, if he or she had observed what Pittman observed. After further investigation, the officer may then have been able to arrest Kunkel for DWI. See Pierce, 32 S.W.3d at 253 (evidence of intoxication obtained after the stop could not justify the stop). Pittman, however, had no authority to arrest her on the basis of his observations.
Simple erratic driving and misdemeanor moving violations do not constitute a breach of the peace. In holding to the contrary, the majority opinion could be read as authorizing or even encouraging wrecker drivers, or anyone else, to follow and attempt to arrest motorists who commit simple moving violations or weave in the roadway. Such a result would cause a greater potential for violence, between the arresting citizen and the motorist, than the erratic driving or moving violations themselves. It would, therefore, be contrary to the best interests of the state and against public policy.
I believe the trial court erred in denying the motion to suppress. Accordingly, I would reverse the judgment of the trial court and remand with instructions to grant the motion to suppress in accordance with this opinion.
NOTES
[*] Senior Justices Ross A. Sears, Bill Cannon, and D. Camille Hutson-Dunn sitting by assignment.
[1] "A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace." Tex.Code Crim. Proc. Ann. art. 14.01(a)(Vernon 1981).
[2] Ruiz was stopped and arrested on suspicion of DWI but was charged with and convicted of unlawfully caring a handgun. Ruiz, 907 S.W.2d at 604.
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151 Mich. App. 300 (1986)
390 N.W.2d 709
KOHN
v.
FORD MOTOR COMPANY
Docket No. 72771.
Michigan Court of Appeals.
Decided April 23, 1986.
Van Benschoten, Hurlburt & Van Benschoten, P.C. (by Harvey E. Van Benschoten and Lawrence A. Hurlburt), for plaintiff.
Taylor & Braun, P.C. (by Charles R. Taylor), for defendant.
Before: M.J. KELLY, P.J., and BEASLEY and M.R. STEMPIEN,[*] JJ.
BEASLEY, J.
On July 5, 1983, after a two-week *304 trial, a Tuscola County jury returned a verdict of no cause of action in favor of defendant, Ford Motor Company, and against plaintiff, William Kohn, by his next friend, Verle Kohn. After a judgment of no cause of action was entered by the trial court, plaintiff appealed as of right. Defendant cross-appealed, raising two issues which need to be addressed only in the event that this case is remanded for a new trial.
The suit arose out of a February 28, 1969, accident involving a 1963 Ford school bus owned by the Vassar Public School System. As the bus approached an intersection in Tuscola County, the brakes failed. The bus driver attempted to turn right and avoid the intersection, but the bus flipped onto its side and landed in a ditch. Plaintiff was one of several school children injured as a result of the accident.
Defendant designed and manufactured the bus chassis and brake system, which was later assembled into the completed bus by another manufacturer. The bus had a single master cylinder hydraulic brake system. In such a brake system, one cylinder provides pressure for all the brakes. Thus, if a leak occurs in any one of the brake drums, the entire brake system becomes inoperable. The Vassar Public School System had purchased and maintained the bus prior to the accident.
On appeal, plaintiff raises six issues. First, plaintiff claims that the Wayne Circuit Court abused its discretion in granting defendant's motion to change venue to Tuscola Circuit Court. Resolution of this issue may render it unnecessary for us to address the remaining issues involving the trial in Tuscola Circuit Court.
Plaintiff filed this suit in Wayne Circuit Court. Initially, we note that venue was properly laid in *305 Wayne County because defendant's headquarters and principal place of business are located there.[1] Thus, the Wayne Circuit Court judge granted defendant's motion for a change of venue to Tuscola County under GCR 1963, 403, now MCR 2.222(A), which provides in part:
The venue of any civil action properly laid ... may be changed to any other county by order of the court upon timely motion by one of the parties, for convenience of parties and witnesses....
This Court has clearly stated that the grant or denial of a motion pursuant to GCR 1963, 403 is discretionary, and the trial court's ruling will be reversed only in cases where there is a plain abuse of discretion.[2] However, the moving party has the burden of making a persuasive showing of inconvenience justifying a change of venue.[3]
On August 10, 1977, the Wayne County trial judge issued a written opinion granting defendant's motion under GCR 1963, 403. In reviewing the trial judge's findings included in his opinion, it is clear that he granted defendant's motion based on the permissible consideration of convenience of the parties and witnesses. Specifically, the trial judge found that the accident occurred in Tuscola County, that plaintiff and his mother were residents of Tuscola County, that the witnesses who could testify as to the facts of the actual accident were residents of Tuscola County, that the witnesses who could testify as to the actual occurrence of brake failure and the maintenance of the *306 bus were residents of Tuscola County, and that the witnesses, other than expert witnesses, who could testify as to damages in the case were residents of or employees who worked in Tuscola County. The trial judge concluded that a far greater number of witnesses would be inconvenienced if trial were held in Wayne County than if the case were to be transferred to Tuscola County.
Based on the above findings, we conclude that the Wayne County trial judge did not abuse his discretion in holding that defendant had carried its burden of making a persuasive showing of inconvenience and granting a change of venue to Tuscola County. In reaching this conclusion, we note that the situation in this case is clearly distinguishable from cases in which this Court has found an abuse of discretion in the granting of a change of venue under GCR 1963, 403. In Brown v Hillsdale County Road Comm,[4] This Court found that the trial court had abused its discretion in transferring a case from Wayne County to Hillsdale County where both counsel and thirteen of seventeen witnesses were from the Detroit metropolitan area and the plaintiff alleged facts that indicated he would be prejudiced and inconvenienced by the transfer.
In the within case, the Wayne County trial judge found that many of the possible witnesses resided in Tuscola County. We refuse to require the trial judge to make specific findings as to who will be the actual witnesses used at trial when he addresses a motion for change of venue early in the litigation process. Here, the trial judge used common sense in making pragmatic inferences concerning the inconvenience to the witnesses and the parties if the case were litigated in Wayne *307 County. The trial judge's logical inferences on the inconvenience to many of the potential witnesses clearly distinguish this case from the Brown situation.
In Duyck v International Playtex, Inc,[5] this Court found an abuse of discretion when the trial court transferred a case from Wayne to Macomb County where both counsel had offices in Wayne County, the defendant was located out of state, and thus had no preference base on convenience as to either county, plaintiff was located closer to Wayne County, the distance between the two courthouses was only nine miles, the trial court had expressed a desire to stop plaintiff's forum shopping and to keep suits out of Wayne County, and the witnesses were unknown. In the within case, the distance between the Tuscola and Wayne County courthouses is approximately nintey miles, many of the inferrable potential witnesses resided in Tuscola County, and the judge gave no indication that he was transferring the case to keep suits out of Wayne County to clear that court's crowded docket.
The situation in this case is much more closely analogous to that in Hunter v Doe.[6] In Hunter, it was held that the trial court did not abuse its discretion in transferring the case from Wayne to nearby Oakland County where the alleged battery occurred in Oakland County, and seven of the eight defendants resided in Oakland County. This Court concluded that inconvenience for purposes of GCR 1963, 403, was apparent from these facts. We are convinced that the facts in this case present a stronger situation of inconvenience to the parties and witnesses than that in Hunter. The *308 Wayne County trial court did not abuse its discretion in transferring this case to Tuscola County.
In its written opinion, we note that the Wayne County trial judge did state that the testimony of the parties' expert witnesses who did not reside in Tuscola County could be presented through depositions conducted elsewhere. Furthermore, in transferring the case, the trial court noted that the Tuscola County trial courts had previously handled litigation related to this accident and might have some expertise in the matter. Upon reviewing the trial court's entire findings, it appears that these two observations were not used as factors in ruling on defendant's motion under GCR 1963, 403. The trial judge did not impermissibly consider factors other than the "convenience of the parties and witnesses" in transferring the case.
We are especially convinced of our conclusion that the trial court did not abuse its discretion in transferring this case in light of plaintiff's inaction after the change of venue. Plaintiff failed to apply for leave to appeal the trial court's order granting change of venue to Tuscola County. An entire two-week trial was subsequently conducted in Tuscola County without significant inconvenience to plaintiff, and a judgment was entered. Allowing plaintiff to now allege an improper change in venue in order to gain a new trial would cause great inefficiency in the court system. Plaintiff's failure to apply for leave to appeal, although it may not technically violate MCL 600.1645; MSA 27A.1645, which deals with the failure of a party to move for a change of venue prior to judgment, certainly violates the spirit of that statute, which provides:
No order, judgment, or decree shall be void or voidable solely on the ground that there was improper venue.
*309 Plaintiff's inaction further convinces us that the trial judge did not abuse his discretion in transferring the case to Tuscola County. Thus, since venue was properly transferred to Tuscola County, we must address plaintiff's other five issues raised on appeal.
On appeal, plaintiff argues that the trial judge erred in allowing defendant to introduce evidence concerning complications during plaintiff's birth and denying admission of plaintiff's evidence indicating his birth had been normal. The record indicates that the evidence introduced, or sought to be introduced, concerning plaintiff's birth was only relevant to the issue of assessing damages. Defendant sought to establish plaintiff's pre-accident physical and mental condition in order to minimize the jury's possible damage award. However, the jury returned a verdict of no cause of action on the negligence and implied warranty claims and, thus, never reached the issue of assessing damages. Therefore, even if the trial judge erred in his rulings on the evidence surrounding plaintiff's birth, such an error was irrelevant and harmless in this case. The alleged error provides no basis for reversing the jury verdict.
Plaintiff next argues that the trial judge erred in refusing to admit into evidence a promotional brochure issued by defendant concerning the bus chassis involved in the accident. Before trial, a hearing was held addressing the question of the admissibility of the brochure relative to each of the three theories of liability included in plaintiff's complaint: express warranty, implied warranty and negligence. At the conclusion of the hearing, the trial judge indicated that one statement in the brochure offered to support plaintiff's claim of a breach of express warranty appeared to be mere *310 puffing and very prejudicial to defendant. The statement at issue provided:
1963 Ford school bus chassis have been designed to provide the utmost safety and reliability for carrying the nation's most precious cargo, school children.
However, the trial judge concluded that he could not rule on the admissibility of the brochure without the development of evidence at trial. He then ruled that the admissibility of the brochure depended upon plaintiff's proofs at trial.
Plaintiff offered the brochure into evidence at the close of his case, but failed to mention his claim of a breach of express warranty during opening arguments and failed to present any evidence supporting such a claim. In fact, even in moving to admit the brochure into evidence, plaintiff based his motion on the brochure's relevance to his claim of negligence. The trial judge again delayed ruling on the admissibility of the brochure on plaintiff's negligence claim in order to give the parties a chance to stipulate to which statements in the brochure were admissible.
Before presenting its case, defendant moved for a directed verdict on the issue of a breach of an express warranty. Plaintiff conceded, without objection, that defendant was entitled to a directed verdict. Now, on appeal, plaintiff wishes to reassert his claim based on an express warranty. However, plaintiff abandoned this issue at trial. Therefore, we refuse to rule on the admissibility of the brochure, as to defendant's express warranty claim since the trial judge never made a final ruling on this issue and plaintiff conceded to a directed verdict on the express warranty claim.
During cross-examination of one of defendant's *311 witnesses, plaintiff moved to admit one sentence from the brochure relevant to the issue of proper maintenance of the brake system. The trial judge allowed this sentence to be read to the jury, since defendant had presented evidence to the effect that the school district's improper maintenance of the brakes was the sole proximate cause of the accident. At the close of all proofs, plaintiff again offered the entire brochure. The trial judge then ruled that the brochure was irrelevant, highly prejudicial and inadmissible except for the one sentence already admitted.
A trial judge's decision on the relevancy and the inflammatory prejudicial effect of evidence under MRE 401 and MRE 403 will not be set aside absent the showing of a clear abuse of discretion.[7] Upon reviewing the record and the brochure that includes descriptions of the entire bus chassis and all the safety features involved, not just the brake system, we conclude that the trial judge did not clearly abuse his discretion in finding the remainder of the brochure to be irrelevant and highly prejudicial to defendant. Plaintiff asserts only that the brochure was relevant because it showed that defendant knew of the risks of designing a defective school bus. The probative value of the brochure, with respect to defendant's claims of negligence and breach of implied warranty and as rebuttal to defendant's claim of improper maintenance, beyond the admitted sentence concerning maintenance, was negligible.
Next, plaintiff argues that the trial judge erred in not allowing plaintiff's expert witness to give his opinion as to whether defendant's use of a four-inch brake shoe in its chassis was reasonably safe and fit for the purposes of a school bus. Just *312 prior to asking for his expert's opinion on this matter, plaintiff had the expert compare the safety provided by a four-inch brake shoe with the safety provided by the four-and-one-half-inch brake shoe that allegedly was called for in Ford's production manual. Upon plaintiff's asking for the expert's opinion, defendant objected on the ground that no foundation had been laid establishing that the four-inch brake shoe examined and discussed by the expert and installed on the bus at the time of the accident was the same type of brake shoe on the chassis of the bus when it left defendant's control. The trial judge sustained the objection. Plaintiff then decided not to attempt to lay a proper foundation for the expert's opinion and ended his examination of that witness.
On appeal, plaintiff alleges that the trial judge erred in sustaining defendant's objection because defendant had admitted in its opening statement that the chassis left its control with a four-inch brake shoe. During its opening statement, defendant stated:
The school pardon me, the brake system that was put on it at the time of the accident was in general the brake system that was put on it when it left the control of Ford Motor Company. But obviously, and you will learn that it has been through some long history of maintenance, repairs, replacements, whatever, during that six years of its life.
Plaintiff argues that this statement bound defendant and dispensed with the need for formal proofs that Ford had installed four-inch brakes. Plaintiff's argument is without merit. The general statement made during defendant's opening statement was not a distinct, formal, solemn admission which was made for the express purpose of dispensing *313 with formal proof of a fact. Thus, defendant was not bound by the statement.[8]
Plaintiff was required to provide a proper foundation for admission of his expert's opinion. Plaintiff failed to offer proof that the four-inch brake shoe examined and discussed by the expert was the same type of brake shoe installed by defendant. The trial judge properly did not allow the expert witness to give his opinion on the propriety of defendant's installation of this type of brake shoe on the bus chassis.
Plaintiff goes on to argue that defendant raised a new and surprising defense by challenging the lack of foundation for the expert's opinion and that reversal is required. Plaintiff claims that defendant was essentially arguing that it had originally installed a four-and-one-half-inch brake shoe. However, defendant was not presenting this new defense in asserting its objection to the expert testimony. Defendant merely desired that plaintiff provide a proper foundation linking the four-inch brake shoe examined and discussed by the expert to the type of brake shoe on the bus chassis when it left defendant's control. In light of defendant's disclosed defense of improper brake maintenance, it was important that plaintiff establish that the brake shoe examined by the expert was substantially the same as the brake shoe installed by defendant.
In addition, upon our examination of the entire trial record, it is obvious that defendant was not asserting a new defense. Defendant's expert witness testified that defendant installed a standard four-inch brake shoe. During closing argument, defendant admitted that it had installed a four-inch brake shoe and argued that this brake shoe *314 was proper standard equipment. Plaintiff's claim that defendant asserted a new defense is without merit.
Plaintiff next argues that the trial judge erred in allowing defendant's expert witness to give his opinion on the distance that it would take to stop the bus by application of the independent parking brake. An expert witness can give opinion testimony.[9] The basis of an expert's opinion testimony may be facts perceived by or made known to him before the hearing, and the trial court may require that the factual basis for an expert opinion be in evidence.[10]
In allowing defendant's expert to give his opinion on the distance in which the parking brake could stop the bus, the trial judge specifically required the witness to base his opinion on tests conducted at twenty miles-per-hour. The witness had previously testified that he had personally observed such tests. The court did not allow the witness to base his opinion on reports of tests conducted by others at thirty miles-per-hour which were not in evidence. The expert witness then testified that, in his opinion, application of the parking brake could have stopped the bus before it entered the intersection where the accident occurred. The trial court properly admitted this expert opinion testimony under the applicable rules of evidence.
Plaintiff goes on to assert that, even if defendant's expert's opinion testimony was properly admitted, it presented a new and surprising defense requiring reversal. This argument is without merit. The opinion testimony concerning the parking brake was clearly admitted for the sole purpose of proving that defendant had designed a safe *315 bus chassis which had two separate adequate braking systems. The expert witness, upon cross-examination, specifically denied that the bus driver should have applied the parking brake or that the failure of the driver to use the parking brake was the sole proximate cause of the accident. Before presenting the opinion evidence, and again during closing argument, defendant expressly denied such a claim and made it clear to the jury that no such defense was being presented. Defendant stated that its only defense was that the sole proximate cause of the accident was the failure of third parties to properly maintain the bus brake system on the safely designed and manufactured bus chassis.
In addition, the trial court's subsequent jury instruction that defendant should prevail if the jury found that the conduct of the Vassar Public School System, or other persons who were not parties to the suit, was the only proximate cause of the accident did not prejudice plaintiff. The jury instruction pertained only to the defense that the sole proximate cause of the accident was the failure of third parties to properly maintain the brakes. In light of the facts noted above, the jury was clearly aware that this instruction did not apply to the bus driver's conduct. Therefore, the trial judge's proper admission of the expert's opinion on the parking brake system does not require reversal.
Finally, plaintiff argues that the trial judge erred in his instructions to the jury concerning the existence and nature of defendant manufacurer's duty and the owner's (Vassar Public School System) duty to maintain the bus after it left defendant's control. Defendant's sole defense to plaintiff's claim was that the owner's improper maintenance of the bus was so gross and unforeseeable as *316 to constitute the sole proximate cause of the accident. Defendant claimed that it had not breached its duty to design and manufacture a bus chassis which was safe under all reasonably foreseeable circumstances (including foreseeable lapses in regular maintenance procedures on the part of the owner).
The record indicates that the trial judge first instructed the jury that:
The Defendant had a duty to use reasonable care in designing and/or manufacturing the braking system on the 1963 Ford School Bus Chassis so as to eliminate all risk of harm or injury which were reasonable and foreseeable. A failure to fulfill that duty is negligence.
The trial judge later instructed the jury that:
If you decide that the Defendant Ford Motor Company was negligent and/or breached implied warranties, and that such negligence or breach of warranty was a proximate cause of the occurrence, it is not a defense that the conduct of other persons who are not parties to this suit also may have been a cause of this occurrence. However if you decide that the only proximate cause of the occurrence was the conduct of Vassar Public Schools or other persons who are not parties to this suit, then your verdict should be for the Defendant.
I charge you members of the Jury that the law does not charge a manufacturer with the duty to properly maintain a vehicle after the vehicle has been sold. In that regard I also charge you that the Michigan Statutes provide that an owner of a vehicle shall not cause or knowingly permit to be driven or moved on a highway a vehicle which is in such an unsafe condition as to endanger a person, or which is equipped with brakes that have not been properly maintained as to their condition and adjustment.
*317 Plaintiff initially claims that the trial judge improperly paraphrased the Michigan statues concerning an owner's duty to maintain the bus.[11] SJI2d, 12.10, applied by the trial judge as his instruction on this issue, specifically provides that the court may paraphrase the applicable statue. Furthermore, the trial judge's instruction that an owner has a duty not to cause a vehicle to be driven which is equipped with "brakes that have not been properly maintained" accurately stated the law. The applicable statutes require the owner to equip a vehicle with "equipment in proper condition and adjustment"[12] and to maintain all brakes in good working order.[13] The trial judge did not err in paraphrasing the statute.
Plaintiff goes on to argue that the trial judge erred in instructing the jury that defendant manufacturer had no duty to maintain the vehicle after the vehicle was sold. Plaintiff argues that this instruction allowed the jury to conclude that defendant had no duty to foresee a buyer's failure to maintain the bus when it designed and produced the bus chassis. This error allegedly misled the jury and allowed them to conclude that, if the accident was caused in any way by the owner's improper maintenance, defendant could not be held liable.
Plaintiff's argument is without merit when the jury instructions are considered as a whole. As noted above, the trial judge instructed the jury that defendant had a duty to design and manufacture braking systems so as to eliminate all reasonably foreseeable risks of injury. This instruction necessarily included defendant's duty to foresee an owner's normal lapses in providing maintenance *318 on the brake system and to design and manufacture a product which reasonably eliminates the risk of injury flowing from such foreseeable improper maintenance.
This reading of the jury instructions is reinforced by the later instruction given by the trial court which required the jury to find defendant liable if its conduct, in any way, was a proximate cause of the accident. In order to return with a verdict of no cause of action, the jury was required to find that the owner's improper maintenance was so extreme that defendant could not foresee such conduct on the part of the owner. Only in such a situation would defendant's conduct not constitute a proximate cause of the accident. The trial court then expressly instructed the jury that, in order to find defendant not liable to plaintiff, the jury had to find that the conduct of the owner was the sole proximate cause of the accident.
In light of these clear instructions to the jury, we conclude that the trial judge's instruction that defendant had no duty to maintain the brakes on the bus after it had been sold did not mislead the jury as plaintiff argues. Plaintiff admits that the trial judge was merely instructing the jury correctly that defendant had no duty to physically inspect and maintain the brakes after sale. The instruction did not inject a false issue into the jury's deliberations. When read as a whole, the jury instructions did not lead the jury to believe that, if the owner failed to maintain the brakes in any way and this failure played a part in causing the accident, they could conclude that defendant was not liable to plaintiff.
In addition, we note that the trial judge's instructions to the jury were amply supported by the evidence heard at trial. As previously noted, plaintiff conceded that defendant had no duty to physically *319 maintain the brakes on the Vassar Public School System bus. Defendant's expert witness testified in detail as to the extreme wear condition of the brake system attributable to a total lack of proper maintenance on the part of the owner. He concluded that the accident had been caused solely by the owner's improper maintenance of the brake system. Furthermore, plaintiff's expert witness testified that the brake system should never have been allowed to get in the condition it was in at the time of the accident. Plaintiff's witness stated that the poor condition of the brake system was attributable to improper maintenance and concluded that proper maintenance could have prevented the accident. Based on this substantial evidence presented at trial to support the defense that the owner's grossly improper maintenance of the bus brakes was the sole proximate cause of the accident, the trial judge properly instructed the jury.
We find no error in the jury's verdict of no cause of action in this case, and we conclude that a retrial of this matter is not required. Therefore, we find it unnecessary to address the two issues raised by defendant on cross-appeal.
Affirmed.
M.J. KELLY, P.J., concurred.
M.R. STEMPIEN, J. (dissenting).
I respectfully dissent because I believe the majority's view results in a substantial denial of plaintiff's due process rights. There are two grounds upon which I differ with the majority's decision that the Wayne County trial court's change of venue order was not an abuse of discretion.
First, the Wayne County judge considered improper factors in determining that inconvenience *320 justified a change of venue pursuant to GCR 1963, 403, now MCR 2.222(A). While the grant or denial of a motion to change venue rests in the sound discretion of the trial court, the burden of establishing inconvenience or prejudice as a ground for a motion to change venue rests upon the moving party. A persuasive showing of inconvenience must be made by that party. Brown v Hillsdale County Road Comm, 126 Mich. App. 72, 78; 337 NW2d 318 (1983); 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 272. It is equally well settled that a plaintiff's choice of venue should be accorded deference. "Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp v Gilbert, 330 U.S. 501, 508; 67 S. Ct. 839; 91 L. Ed. 1055 (1947).
GCR 1963, 403, now MCR 2.222(A), sets forth the permissible considerations for a change of venue properly laid. They are limited to either the convenience of the parties and witnesses, or whether an impartial trial can be held. A trial court's exercise of discretion in ruling on a motion for change of venue under this rule is limited to these considerations, and reliance on impermissible considerations will constitute an abuse of that discretion. Duyck v International Playtex, Inc, 144 Mich. App. 595, 600; 375 NW2d 769 (1985).
Here, the Wayne County judge has considered the fact that plaintiff is a resident of Tuscola County. In a case where the plaintiff has selected the forum and energetically opposes a request to change venue, any inconvenience to that plaintiff is waived and is not a proper consideration. Defendant is admittedly situated in Wayne County because that is the locale of its corporate international headquarters and of its principal place of business, including its engineering and product *321 design and development facilities. Thus, that party can hardly claim inconvenience, particularly in this products liability case which is founded primarily on a claim of defective design, which design and development process took place in Wayne County.
Regarding witnesses, the Wayne County judge pointed out that the accident occurred in Tuscola County, so the witnesses to the accident resided there, as well as some witnesses who would testify regarding damages and a possible witness in support of a defense theory. However, there was no record as to how many of these witnesses actually existed, who they were, or what actual inconvenience would be experienced by any of them. The Wayne County judge found that the location of expert witnesses was not significant in this case. Merely because the injury or event occurred in another county does not justify a change of venue. Similarly, the fact that several of the witnesses to the accident were residents of Tuscola County is not enough to justify a change of venue. Caro, Michigan, the county seat of Tuscola County, is approximately nintey miles from downtown Detroit, where the county seat of Wayne County is located. Considering southeastern Michigan's modern highways and transportation, this distance, standing alone, is not sufficiently burdensome to justify a change in venue from Wayne County, where defendant's design facilities are located.
More importantly, there is no evidence that the Wayne County judge applied the permissible factors contemplated by the court rules as they relate to unfairness, vexatiousness or oppressiveness to defendant. He simply stated his opinion in general, conclusory terms that a greater number of witnesses would be inconvenienced if trial were to be held in Wayne County than would be inconvenienced *322 if the case were transferred to Tuscola County. Defendant must show that, because of the distance between the area where the accident occurred and the plaintiff's chosen forum, it will be unable to produce witnesses for trial without substantial hardship. For example, in Gulf Oil, supra, the site of the accident was four hundred miles from the court and the litigants could not compel witnesses to attend the trial. Hence, the case would have been tried by deposition, "a condition not satisfactory to court, jury or most litigants." Gulf Oil, supra, p 511.
It is also significant that the Wayne County judge considered some matters which have no place in the proper exercise of discretion to change venue. He held that certain witnesses could be deposed and their testimony could be presented by deposition rather than in person. A decision concerning the manner of presentation of proofs, including testimony, is an advocacy decision that is for the parties, not the court, to make. How that advocacy decision is made is not a proper factor for the court to consider when deciding the inconvenience to witnesses under MCR 2.222(A). The trial judge also found that, because there was some prior litigation arising out of the same accident, "chances are better that the trial judge will have acquired some expertise both as to legal and factual issues." Such a consideration is totally outside the plain language of GCR 1963, 403, now MCR 2.222(A), and therefore is impermissible. In this case, in fact, a different trial judge ultimately heard this case, which is the result that should have been expected.
Finally, the chronology of the Wayne County judge's order of August 10, 1977, in relation to the case flow management problems of the Wayne Circuit Court cannot be totally ignored. *323 The history of docket overcrowding in that circuit in 1977 is well documented. At that time, its record of time from date of filing to date of trial had reached fifty to sixty months. Also well known is the intensive, zealous effort at that time to dispose of some contested jury trials through emphasis on changing venue and remanding cases to lower courts for that reason, rather than for legally permissible reasons. Although that consideration is not stated in the Wayne County judge's order, the chronological association is clearly present. Since the moving party has not made the required persuasive showing of inconvenience in this case, docket congestion in Wayne County should not have been considered by the Wayne County judge at all. Duyck v International Playtex, Inc, supra, p 602.
All contested litigation could be said to be inconvenient to all witnesses who must testify. The clear thrust of the court rule herein contemplates the court's interference with the plaintiff's choice of forum on the basis of inconvenience only in those exceptional cases where the weighing of the permissible factors shows decisively such inconvenience as will likely interfere with a fair trial to the defendant as guaranteed by due process of law. In the absence of some compelling reason to change venue properly laid, including considerations of ease of access to proofs, such as the difficulty of producing witnesses and evidence for trial or other proper considerations relating to receiving a fair and impartial trial, the request should have been denied.
The second ground for my dissent from the majority's opinion is that it creates the danger of the precedent of ignoring due process rights whenever a substantial expenditure of legal resources has been made in a case. Here, plaintiff has been *324 deprived of his right to select a forum for a jury trial because of the consideration of factors other than those permitted under the venue rule. Then, on appeal, the majority would deprive plaintiff of his right to select a forum because of his failure to apply prior to trial for leave to appeal from the Wayne County judge's erroneous order granting change of venue to Tuscola County. As the majority recognizes, there has been no violation of MCL 600.1645; MSA 27A.1645. Venue was proper in Wayne County.
The fact that there has been a significant expenditure of legal resources through the two-week trial should not affect the decision here. Where a plaintiff has been deprived of so fundamental a right as selection of a forum in which to choose a jury because of improper considerations under the venue rule, it is not possible to truly determine whether the plaintiff has been given a fair trial. Plaintiff certainly has been denied the choice of the jury panel from which the jury was chosen, that being a panel composed of citizens who are residents of the urban county in which defendant's product design facility is located. The erroneous change of venue order substituted a jury panel of citizens who are residents of a county which is primarily rural in character.
A number of Michigan cases have established that the analogous right to trial by jury is so fundamental that its denial, even without a showing of prejudice, requires automatic reversal. In the leading Michigan case, People v Miller, 411 Mich. 321, 326; 307 NW2d 335 (1981), the Supreme Court held that variance by a trial court of the jury pool procedures required reversal even when it could not find prejudice to the objecting party. The Court stated:
*325 [G]iven the fundamental nature of the right to trial by an impartial jury, and the inherent difficulty of evaluating such claims, a requirement that a defendant demonstrate prejudice would impose an often impossible burden. A defendant is entitled to have the jury selected as provided by the rule. Where, as here, a selection procedure is challenged before the process begins, the failure to follow the procedure prescribed in the rule requires reversal. [Citation deleted.]
Several Court of Appeals panels have followed the Miller rationale. In People v Adkins, 117 Mich. App. 583, 586; 324 NW2d 88 (1982), the Court, analyzing Miller, stated:
Our Supreme Court agreed that there was nothing in the record from which one could affirmatively find prejudice; nevertheless, the Court reversed the defendant's convictions, reasoning that, given the fundamental nature of the right to trial by an impartial jury and the inherent difficulty of evaluating claims of prejudice, a requirement that a defendant demonstrate prejudice would impose an often impossible burden. The Court held that the failure to follow the procedure prescribed in the court rule requires reversal.
See, also, People v Key, 121 Mich. App. 168; 328 NW2d 609 (1983), Bishop v Interlake, 121 Mich. App. 397; 328 NW2d 643 (1983), and People v Parham, 28 Mich. App. 267; 184 NW2d 273 (1970), lv den 384 Mich. 803 (1971).
In the present case, Michigan law requires a deference to plaintiff's choice of an urban industrial area forum and the juries in that forum. See Duyck v Playtex, supra; Brown v Hillsdale County Road Comm, supra. Plaintiff lost his fundamental right to trial by a jury in the forum of his choice, where venue was properly laid, when the Wayne *326 County trial court transferred venue. The Wayne County trial court abused its discretion in granting a transfer. Although there may be an inherent difficulty in evaluating prejudice to plaintiff's right to trial by an impartial jury in the forum of his choice, the fundamental nature of the right to trial by jury requires reversal when there has been a clear abuse of discretion. I believe it is a fiction to analyze whether a "fair trial" has been provided plaintiff once a fundamental right to selection of a forum for choosing a jury has been denied plaintiff on impermissible grounds, as was done here. As was recognized by the United States Supreme Court in Vasquez v Hillery, 474 US ___; 106 S. Ct. 617; 88 L. Ed. 2d 598 (1986), it is impossible to make such an analysis where so serious a denial of due process has been made.
Here, a product design issue is involved. Defendant's principal place of business is in the forum chosen by plaintiff. Given the type of subject matter involved and the factual questions which often arise in products liability cases, it is especially erroneous to deprive plaintiff of an urban forum, in this case Wayne County, and to require him to proceed in a rural setting that is foreign to industrialized activities. The trial court has deprived plaintiff of his right to choose a setting for the selection of jurors whom he believes would be best equipped to understand the factual questions of his case, where no significant inconvenience to the opposing party has been shown and venue is properly laid under the court rule.
Both the United States Supreme Court and the Michigan Supreme Court have recently ruled on the significance of error involving the fundamental right of jury composition. In a recent United States Supreme Court opinion, the Court held that where a defendant had been indicted by a grand *327 jury from which members of his own race were systematically excluded reversal of the conviction of the defendant was required. The Court refused to apply a harmless error analysis or to rule that a subsequent fair trial has purged any taint attributable to the erroneous grand jury process. The Court found that a conviction at a fair trial could not cure the taint attributable to a grand jury selected on the basis of race. Vasquez v Hillery, 474 US ___; 106 S. Ct. 617; 88 L. Ed. 2d 598 (1986).
Further, recently the Michigan Supreme Court, after reviewing an order of the Wayne Circuit Court which transferred venue from Wayne County to Macomb Circuit Court, summarily vacated that order and the case was remanded to Wayne County for further proceedings. Parton v Aco, Inc, 424 Mich. 851 (1985). This Court had refused to grant an application for leave to appeal from a change of venue order. Docket No. 84718, order of July 31, 1985 (unreported). This Court's records show that the basis for this Court's denial of the application for leave to appeal was that the event at issue took place in Macomb County, the residence of the plaintiff was Macomb County, and, medical treatment took place in Macomb County. In view of the fact that, in the instant case, the Wayne County court improperly considered the convenience to plaintiff who had already chosen his forum, this Court cannot ignore the fact that the Michigan Supreme Court has clearly indicated that the reliance on similar considerations in Parton were improper.
I would reverse and remand for a new trial in Wayne County.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] MCL 600.1621(a); MSA 27A.1621(a).
[2] Brown v Hillsdale County Road Comm, 126 Mich. App. 72; 337 NW2d 318 (1983); Hunter v Doe, 61 Mich. App. 465; 233 NW2d 39 (1975).
[3] Id.
[4] Brown, supra.
[5] 144 Mich. App. 595; 375 NW2d 769 (1985).
[6] Hunter, supra.
[7] Granger v Fruehauf Corp, 147 Mich. App. 190; 383 NW2d 162 (1985).
[8] See Michigan Health Care, Inc v Flagg Industries, Inc, 67 Mich. App. 125, 129; 240 NW2d 295 (1976).
[9] MRE 702.
[10] MRE 703.
[11] MCL 257.683(1); MSA 9.2383(1), MCL 257.705(c); MSA 9.2405(c).
[12] MCL 257.683(1); MSA 9.2383(1).
[13] MCL 257.705(c); MSA 9.2405(c).
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203 B.R. 543 (1996)
In re JAMESWAY CORPORATION, et al., Debtors.
Bankruptcy No. 95 B 44821 (JLG).
United States Bankruptcy Court, S.D. New York.
December 31, 1996.
Kaye, Scholer, Fierman, Hays & Handler, L.L.P., New York City, for Debtors.
Gordon, Feinblatt, Rothman, Hoffberger & Hollander, L.L.C., Baltimore, Maryland, and Zalkin, Rodin & Goodman L.L.P., New York City, for the Landlords.
Traub, Bonacquist & Fox, New York City, for Unsecured Creditors' Committee.
*544 Dollinger & Dollinger, P.A., Hauppauge, New York, for Station Road Properties, L.L.C.
MEMORANDUM DECISION ON LANDLORDS' MOTION FOR REARGUMENT OF DEBTORS' CROSS-MOTION FOR SUMMARY JUDGMENT DISALLOWING ALLEGED ADMINISTRATIVE CLAIMS ARISING FROM REJECTION OF LEASES OF NON-RESIDENTIAL REAL PROPERTY
JAMES L. GARRITY, Jr., Bankruptcy Judge.
In In re Jamesway Corp., 202 B.R. 697 (Bankr.S.D.N.Y.1996) (the "Decision"), we granted the debtors' (collectively "Jamesway") cross-motion (the "Cross-Motion") for summary judgment disallowing administrative claims filed on behalf of certain landlords for future rent due under their respective leases of non-residential real property. In a December 11, 1996 decision, we granted Jamesway's cross-motion for summary judgment disallowing an administrative claim for future rent asserted by another landlord, Station Road Properties, LLC ("Station Road"). In doing so, in part, we incorporated the Decision by reference. See In re Jamesway Corp., No. 95 B 44821 (JLG) (Bankr.S.D.N.Y. Dec. 11, 1996) (unpublished memorandum decision). The landlords, including Station Road (collectively, the "Landlords"), seek to reargue the Cross-Motion. We deny the motion.
Facts
The relevant facts are set forth in the Decision and will not be repeated herein except as necessary. Except as otherwise noted, all capitalized terms herein have the meanings ascribed to them in the Decision. The Landlords leased non-residential real property to Jamesway. Pursuant to the Jamesway I Plan, the debtor assumed the Leases. After the Jamesway I Plan was substantially consummated pursuant to § 1101(2) of the Bankruptcy Code, Jamesway and its affiliates commenced Jamesway II by filing separate chapter 11 petitions for reorganization in this district. In Jamesway II, the debtor rejected the Leases without first assuming them. The Landlords filed separate administrative expense priority claims under §§ 365(g) and 503(b) of the Bankruptcy Code for, among other things, damages arising from the rejection of the Leases. Jamesway objected to those claims. The parties stipulated to certain facts and cross-moved for summary judgment. The Landlords sought partial summary judgment pursuant to Bankruptcy Rule 7056 declaring that they hold allowed administrative priority claims equal to the rent reserved under each Lease for the balance of each Lease. Jamesway sought summary judgment that those claims are general unsecured claims capped by § 502(b)(6) of the Bankruptcy Code.
Relying on the Second Circuit's decision in Nostas Associates v. Costich (In re Klein Sleep Products, Inc.), 78 F.3d 18 (2d Cir. 1996) ("Klein Sleep"), the Landlords argued that their claims are entitled to administrative priority status under §§ 365(g) and 507(a)(1) of the Bankruptcy Code. They contended that for purposes of § 365(g)(2), which states in relevant part that "the rejection of an . . . unexpired lease of the debtor constitutes a breach of such . . . lease . . . [,] if such . . . lease has been assumed . . . [,] at the time of such rejection", the term "debtor" refers to any debtor under the Bankruptcy Code, regardless of whether the "debtor" rejecting the lease is the "debtor" that assumed it. See 202 B.R. at 700-01. They also argued that because § 502(g) is silent regarding the treatment of claims arising from the rejection of assumed leases, it is reasonable to treat them as § 503(b)(1) administrative expenses, even in subsequent proceedings. Id. at 700-01. We rejected Landlord's arguments, distinguishing Klein Sleep because it involves the assumption and rejection of a lease in the same chapter 11 case, whereas Jamesway I and Jamesway II are different chapter 11 cases involving different debtors. Id. at 700. We found that the term "debtor" in § 365(g)(2) refers to the debtor that previously assumed and then rejected a lease, and not to a debtor in a different case because "[t]he estate created in one bankruptcy case is distinct from that created upon the commencement of a subsequent case." Id. at 701. Additionally, we found that because the Jamesway II estate *545 derived no benefit from the Leases, the Landlords' were not entitled to an administrative priority expense claim in Jamesway II. Id. at 701-02 (citing Fruehauf Corp. v. Jartran, Inc. (In re Jartran, Inc.), 886 F.2d 859, 870 (7th Cir.1989)). Finally, we rejected the Landlords' argument that their construction of § 365(g) is consistent with practice under the Bankruptcy Act, which granted administrative priority to claims arising from executory contracts that were assumed during a reorganization and later rejected, because practice under the Bankruptcy Act did not contemplate serial chapter 11 cases. Id. at 703-04. In discussing Jartran, we stated, among other things, that "[f]or purposes of these motions, Landlords stipulated that Jamesway II was not filed in bad faith, that we need not consider whether serial bankruptcy filings are per se improper and that the Jamesway I Plan was substantially consummated when Jamesway II was filed." Id. at 704. Later in the opinion we stated:
Underlying Landlords' arguments is their contention that permitting Jamesway to engage in serial filings circumvents remedies provided in the Bankruptcy Code for failed reorganizations and its proscription under § 1127 of modifications to the terms of a plan that has been substantially consummated. In limited instances, courts dismiss serial bankruptcy filings on bad faith or similar grounds. . . . Absent conduct amounting to bad faith, serial chapter 11 filings are generally allowed. . . .
Jamesway denies that these are bad faith serial filings. Moreover, as noted, for purposes of these motions, Landlords stipulated that Jamesway II was not filed in bad faith and they do not contend that serial chapter 11 cases are per se improper. . . .
Id. at 705 (citations omitted).
The Landlords deny that they stipulated that Jamesway II was not filed in bad faith. They seek leave to reargue the Cross-Motion asserting that whether or not Jamesway II was filed in bad faith is a disputed material issue of fact precluding summary judgment in Jamesway's favor. Jamesway and the Committee oppose this motion, arguing that (i) the record upon which the Decision is based fully supports a finding that Jamesway II was filed in good faith, and (ii) the Landlords are guilty of laches in failing to raise the issue of good faith for more than seven months after the case was filed.
Discussion
The Landlords purport to seek reargument under Local Bankruptcy Rule 9023-1 and Fed.R.Civ.P. 60(b). In relevant part, our local rule states that
[a] motion for reargument shall be served within 10 days after the entry of the Court's determination of the original motion and, unless the Court orders otherwise, shall be made returnable within the same amount of time as required for the original motion. The motion shall set forth concisely the matters or controlling decisions which counsel believes the Court has not considered. No oral argument shall be heard unless the Court grants the motion and specifically orders that the matter be reargued orally.
Local Rule 9023-1(a). By contrast, a motion under Rule 60(b) need only be made "within a reasonable time" with certain exceptions that are not relevant here. See Fed.R.Civ.P. 60(b). That rule is made applicable to bankruptcy cases by Rule 9024 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"). Local Bankruptcy Rule 9023-1 "does not apply to motions made under Bankruptcy Rule . . . 9024." See Comment to Local Bankruptcy Rule 9023-1.
Fed.R.Civ.P. 59, which is made applicable herein by Bankruptcy Rule 9023, provides in relevant part that a new trial may be granted "on all or part of the issues" in an action tried without a jury "for any of the reasons for which rehearings have been granted in suits in equity in courts of the United States." It further provides that "the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment." Fed. R.Civ.P. 59(a). Thus, a motion for "reargument" is properly in the nature of a motion for a new trial or for the amendment of a judgment pursuant to Fed.R.Civ.P. 59. See *546 9 COLLIER ON BANKRUPTCY ¶ 9023.05 at pp. 9023-6-7 (15th rev. ed. 1996) ("Any motion that draws into question the correctness of the judgment is functionally a motion under Rule 9023, whatever its label. Thus a motion to `reconsider,' `for clarification,' to `vacate,' to `set aside,' or to `reargue' is a motion under Rule 9023") (citations omitted). We will apply Rule 59 in this case.
Rule 59 provides that a motion for a new trial or to amend a judgment must be made no later than 10 days after entry of the judgment. Fed.R.Civ.P. 59(b) and (e). We rendered and docketed the Decision on November 21, 1996. The Landlords filed and served this motion on December 2, 1996 11 days later. We entered our judgment and order in furtherance of the Decision on December 10, 1996. Thus, the Landlords timely filed this motion pursuant to Fed.R.Civ.P. 59 and Local Bankruptcy Rule 9023-1. See 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2812 (2d ed. 1995) ("The time for seeking a new trial runs from the entry of the judgment, not from the reception of the verdict nor from the date the moving party receives notice of the entry of judgment") (and cases cited therein).
Local Bankruptcy Rule 9023-1(a) is derived from Civil Rule 3 of the United States District Court for the Southern District of New York. See Comment to Local Bankruptcy Rule 9023-1. Under those rules, the standard applicable to motions for reargument is identical to that applicable to Fed. R.Civ.P. 59(e) motions to alter or amend a judgment. See In re Houbigant, Inc., 190 B.R. 185, 187 (Bankr.S.D.N.Y.1995); see, e.g., Farkas v. Ellis, 783 F. Supp. 830, 833 n. 1 (S.D.N.Y.), aff'd, 979 F.2d 845 (2d Cir.1992); Travelers Insur. Co. v. Buffalo Reinsurance Co., 739 F. Supp. 209, 210 n. 1 (S.D.N.Y.1990).
The standard under Rule 59 is a strict one. Farkas v. Ellis, 783 F.Supp. at 832 (citing Ruiz v. Commissioner of D.O.T. of City of New York, 687 F. Supp. 888, 890 (S.D.N.Y.), aff'd, 858 F.2d 898 (2d Cir.1988)). "The only proper ground on which a party may move to reargue an unambiguous order is that the court overlooked `matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court." Adams v. United States, 686 F. Supp. 417, 418 (S.D.N.Y.1988) (quoting Civil Rule 3(j)); see also Park South Tenants Corp. v. 200 Central Park South Associates, L.P., 754 F. Supp. 352, 354 (S.D.N.Y.), aff'd, 941 F.2d 112 (2d Cir.1991); Novak v. National Broadcasting Co., Inc., 760 F. Supp. 47, 48 (S.D.N.Y.1991); Caleb & Co. v. E.I. DuPont de Nemours & Co., 624 F. Supp. 747, 748 (S.D.N.Y.1985). This rule is calculated to "insure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y.1988); see also Farkas v. Ellis, 783 F.Supp. at 832.
Our review of the pleadings submitted by the parties as well as the transcript of the hearing indicates that the Landlords did not stipulate that Jamesway II was not filed in bad faith. Thus we modify our findings in the Decision accordingly. See Bankruptcy Rules 7052(b), 9014 and 9023(a).
However, it does not follow that the Landlords are entitled to other relief under Rule 59 and Local Rule 9023-1 because they have not demonstrated why Jamesway is not entitled to summary judgment on the Cross-Motion even assuming, arguendo, Jamesway II was filed in bad faith a point that Jamesway and the Committee deny. The Landlords have cited no authority for the proposition that an appropriate means of redressing the alleged bad faith serial filing of Jamesway II is to grant them administrative priority claims in this case. The statute rejects such a result and Klein Sleep is inapposite because it does not involve serial bankruptcy filings. As far as we have been able to determine, no such authority exists. In In re Jartran, Inc., 886 F.2d at 871, the court did state that "[o]nce this second action is deemed a separate and independent Chapter 11 case, Fruehauf may not claim an automatic administrative priority in the second case simply by pointing to the provisions of the original reorganization Plan." However, it did not hold that the lessor would be entitled *547 to an administrative priority claim in the second bankruptcy case if it was filed in bad faith. Interested parties may have remedies if Jamesway II proves to be a bad faith serial filing, although we note that Jamesway and the Committee vigorously deny bad faith and urge that the Landlords have waived any right to assert it. Nonetheless, the Landlords are not entitled to an administrative priority claim in this case. See 202 B.R. at 705-06 ("[o]ur court of appeals has emphasized that `priorities in bankruptcy should be narrowly construed and sparingly granted'") (citing Klein Sleep, 78 F.3d at 23; Trustees of Amalgamated Ins. Fund v. McFarlin's, Inc., 789 F.2d 98, 100 (2d Cir.1986)).
Among other things, Jamesway asserted in its Cross-Motion that the record before us was sufficient to warrant summary judgment in its favor on the issue of good faith, and that the Landlords' efforts to challenge Jamesway II as a bad faith filing should be barred by the doctrine of laches. Jamesway renews those arguments in opposition to this motion. However, because we find no merit to the Landlords' motion, we need not reach those issues.
Conclusion
We deny the Landlords' motion for leave to reargue Jamesway's Cross-Motion for summary judgment.
SETTLE ORDER.
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203 B.R. 624 (1996)
In re: ALUMNI HOTEL CORPORATION, 17017 Blue Realty Corporation, Villa Holding Corporation, Debtors.
Bankruptcy Nos. 91-10696, 95-44349 and 95-53977.
United States Bankruptcy Court, E.D. Michigan, Southern Division.
November 26, 1996.
As Amended December 30, 1996.
*625 Daniel Weiner, Bloomfield Hills, MI, for Fine & Davenport.
Linda Hammell, NLRB, Detroit, MI, for NLRB.
Kevin Ball, Birmingham, MI, for trustee.
John Adam, Southfield, MI, for HERE Local 24 & HERE Funds.
MEMORANDUM OPINION REGARDING MOTION FOR ALLOWANCE OF ATTORNEY FEES OF MARTIN FINE
STEVEN W. RHODES, Chief Judge.
Martin Fine and the Davenport Entities have filed a motion for allowance of attorney fees under 11 U.S.C. § 503. The issue is whether these legal fees should be allowed as *626 an administrative expense of the debtors' estate(s) under 11 U.S.C. § 503(b)(3)(D) and (b)(4). The Court concludes that the fees should not be allowed, as the applicants have not made a substantial contribution to the debtors' estates.
I. The Application
Defendants Martin Fine and "the Davenport Entities," corporations affiliated with Fine,[1] seek payment and/or reimbursement of $25,807.25 in attorneys fees and $273.72 in costs as administrative expenses of the estate(s) of Alumni Hotel Corporation, 17017 Blue Realty Corporation, and Villa Holding Corporation. Fine contends that by proposing and designing a settlement of the trustee's adversary proceeding, his counsel produced a "substantial contribution" to these three estates and, therefore, the estates should bear the expense of counsel under 11 U.S.C. § 503(b)(3)(D) and (b)(4).
II. The Estates
This matter concerns the estates of three different debtors: Alumni Hotel Corporation, 17017 Blue Realty Corporation, and Villa Holding Corporation. These corporations shared two important attributes: 1) the same individual, Martin Fine, was the sole shareholder and managing officer of each of these corporations; and 2) each of the corporations was connected to the ownership and/or management of a hotel located at 17017 West Nine Mile Road, Southfield, Michigan. The entangled affairs of these companies generated hundreds of pleadings in their bankruptcies and culminated in an adversary proceeding to determine the true ownership of the hotel property. The attorneys' fees at issue arose during the adversary proceeding. In order to understand the adversary proceeding, a brief history of the three underlying bankruptcy cases is included in the summary of facts.
A. Alumni Hotel Corporation
Alumni Corporation, doing business as the Days Hotel, operated at 17017 West Nine Mile Road, Southfield, Michigan, from September 27, 1989 to May of 1993. In May of 1993, Alumni ceased operating as a Days Hotel and became a Ramada Hotel.[2] Martin Fine was the president and sole shareholder of Alumni.[3] From 1989 through the pendency of the Alumni bankruptcy case, the hotel property was the subject of several transactions. According to Alumni's disclosure statement(s), Alumni Hotel Corporation purchased the real and personal property of the hotel from Prudential Insurance Company, using a $4 million loan from Fine, in a sale which closed on September 27, 1989. On March 19, 1990, Fine, as president of Alumni, executed a quit-claim deed which transferred title to the property to 649 Broadway Equities Company, a partnership in which Fine is a partner. The quit-claim deed indicated that the transfer was for "$1 and other good and valuable consideration." Fine later maintained that Broadway received the property in exchange for $200,000 and an agreement that Broadway would assume the $4 million obligation to repay Fine.[4] Alumni *627 then leased the hotel property from Broadway. The record contains a copy of the lease, which shows that on March 19, 1990, Fine, acting as Alumni's representative, entered into a twenty-year lease agreement with Broadway, also represented by Fine, for total rent of $4,800,000, payable in monthly installments of $20,000. On September 16, 1991, Martin Fine, as a partner of Broadway, gave the Israel Discount Bank of New York a mortgage on the hotel property as security for a guarantee for "a certain obligation of Davenport Trading Corp.", another corporation owned by Fine.[5]
On September 23, 1991, Alumni filed a voluntary petition for chapter 11 relief. Martin Fine remained as Alumni's director. Alumni's schedules disclosed that its chief assets were a Days Hotel franchise agreement, valid through September 1999, and the Broadway leasehold agreement for the hotel property.[6] The schedules disclosed that Alumni owed Broadway a considerable amount of unpaid rent and that Broadway held a security interest in the lease.[7] In addition, Alumni's disclosure statement, filed August 5, 1992, stated that "entities controlled by Mr. Fine have prepetition unsecured claims in the approximate amount of $1,500,000.00."[8]
On November 28, 1991, Martin Fine, acting as president of Broadway, executed a quit-claim deed transferring the hotel property to 17017 Blue Realty Corporation, a corporation in which Fine served as president and sole stockholder. The deed stated that the property was exchanged "for the sum of $1." On April 30, 1992, Fine, acting as president of Blue Realty, gave the Israel Discount Bank of New York a mortgage on the hotel property as security for Blue Realty's guarantee of "certain obligations of Davenport Trading Corp., Twelve Lions Renaissance Corp., 644 BRDY Realty Inc., WCC BOCA Corp., and Martin R. Fine."[9] On August 5, 1993, Fine, acting as president of Blue Realty, again gave the Israel Discount Bank of New York a mortgage on the hotel property as security for Blue Realty's guarantee of "certain obligations of Davenport Trading Corp., Twelve Lions Renaissance Corp., 644 BRDY Realty Inc., WCC BOCA Corp. and Martin R. Fine."[10]
On February 15, 1994, the court appointed a trustee in Alumni's chapter 11 case and ordered the trustee to report whether Alumni should remain in chapter 11 or be converted to chapter 7. On March 8, 1994, trustee Charles Taunt reported that Alumni's case should be converted to chapter 7, as Alumni had incurred substantial losses during the case and had no reasonable likelihood of rehabilitation. The trustee recommended that the hotel business be liquidated by sale as a going concern, rather than simply shutting down the business and auctioning Alumni's few assets. The trustee believed that to be most effective, the sale should take place as soon as possible and that the buyer should fund the operational losses which would occur in the pendency of the court's approval of the sale and the closing. The trustee noted that Martin Fine's related businesses may be able to purchase the hotel.
*628 On April 25, 1994, the court ordered that Alumni's case be converted from chapter 11 to chapter 7. In accordance with the trustee's recommendation that the hotel be sold as a going concern, the trustee received court permission to enter into an agreement with one of Martin Fine's corporations, the Villa Holding Corporation, which allowed Villa to operate the hotel, receive its revenues, and pay its expenses, for the period from April 26, 1994 until September 15, 1994. In exchange for receipt of all hotel revenue, Villa was to pay the Alumni estate $5,000 per month.
On April 29, 1994, the trustee moved for court permission to sell Alumni's assets, consisting primarily of inventory, accounts, and the Ramada franchise agreement, to two corporations controlled by Martin Fine, the Smythe-Burton Consulting Corp. and Villa Holding Corporation. These corporations offered to pay $200,000 for these assets, as follows:
$30,000 cash at closing;
$40,000 cash upon successful transfer of
the hotel's liquor license;
$100,000 release of a super-priority claim
of Smythe-Burton;
$30,000 assumption of liability for advance
deposits made for use of the hotel;
and subordination of Blue Realty's claims (for unpaid rent) to all other claims against the estate. Various creditors filed objections to the proposed sale. These objections were eventually resolved, and the court entered an order approving sale of Alumni's meager assets to Smythe-Burton and Villa on September 22, 1994, on the terms listed above.
This was not the end of the matter, however.
B. Litigation Over Property Located at 17017 West Nine Mile Road
On April 24, 1995, the trustee filed an adversary action alleging that Martin Fine and the companies which he controlled engaged in fraudulent transfers involving the hotel property which were allegedly designed to hinder, delay, or defraud creditors of Alumni. The trustee argued that the real property located at 17017 West Nine Mile Road, Southfield, Michigan, should be considered part of Alumni's estate. The complaint named Martin Fine and his related companies, Blue Realty, 649 Broadway Equities Company, and five corporations in which Martin Fine was a shareholder and officer: Davenport Trading Corp., Twelve Lions Renaissance Corp., 644 BRDY Realty Inc., WCC BOCA Corp., and Villa Holding Corporation.[11] The complaint also named the Israel Discount Bank of New York, which held mortgages on the hotel property.
The trustee alleged that although Fine, Blue Realty, and Fine's affiliated businesses purported to be separate entities, "Fine manipulated and dominated [Alumni] and Blue [Realty], stripping [Alumni] of the real estate, [Alumni's] most important asset."[12] The trustee alleged that Alumni's leasehold interest in the hotel property was a sham designed to insulate the debtor's interest in the hotel property from creditors. The trustee also claimed that the sale of the hotel property to Broadway and, later, to Blue Realty, was actually nothing more than a financing transaction. The trustee sought a declaration that the hotel property was property of the Alumni estate, along with a decree setting aside the Israel Discount Bank of New York's mortgages.
C. 17017 Blue Realty Corporation
The 17017 Blue Realty Corporation described its business as "own[ing] and leas[ing] real estate." Blue Realty was incorporated in Michigan, although its address was Martin Fine's office address at 644 Broadway, New York, New York. Martin Fine was the chief executive officer, president, and sole shareholder of the Blue Realty Corporation. Blue Realty's principal asset was the real property located at 17017 West Nine Mile Road, Southfield, Michigan.[13] Mr. *629 Fine stated at the Blue Realty 341 hearing that 649 Broadway Equities Company sold the property to Blue Realty in 1991. Mr. Fine also stated that Blue Realty had never obtained an appraisal of the property, although he estimated that the property was worth $2 million.
On April 25, 1995, the day after Alumni's trustee filed the adversary action against Fine, Blue Realty, and others, Blue Realty filed a voluntary petition for relief under chapter 11. The schedules showed that Blue Realty's chief tenant was Villa Holding Corporation, which entered into a lease of the hotel property on April 29, 1994.
D. Villa Holding Corporation
The Villa Holding Corporation, doing business as the Ramada Inn Southfield, was located at 17017 W. Nine Mile Road, Southfield, Michigan. Villa described the nature of its business as "hotel lessee" and "hotel operator," and showed Martin Fine as the sole shareholder and president of Villa.
On December 26, 1995, Villa filed a voluntary petition for relief under Chapter 11. Villa disclosed that its primary assets were the lease for 17017 W. Nine Mile Road and the Ramada Inn Franchise Agreement.[14] Villa listed Blue Realty as a creditor owed $107,000 for rent. Villa's schedules disclosed 644 BRDY Realty, Inc. and Twelve Lions Renaissance Corp. as creditors.
E. Settlement of the Trustee's Adversary Litigation
On the eve of the trial in the Alumni trustee's adversary proceeding, the trustee and the defendants entered into a settlement agreement. The agreement provided that Alumni's trustee would also become trustee for the Blue Realty and Villa estates and would assume control of the real property and the other hotel assets, such as the hotel furniture. The agreement acknowledged that certain creditors had filed similar claims against each of these estates and provided a method for resolving those claims.
Under the agreement, the Fine corporations received an administrative expense priority claim of $200,000 and, in addition, an unsecured, subordinated claim totaling $1,519,000, which would be paid only after certain other claimants were paid. The Fine corporation, Smythe-Burton Consulting, received $40,000 in connection with the hotel liquor license. Claims of unionized hotel employees for unpaid wages, benefits, and penalties were reduced to $250,000[15] and given administrative priority in exchange for a release of all past and pending claims against Fine and the Fine corporations. The Israel Discount Bank agreed to a secured claim of $500,000 against the debtors.[16] The parties also agreed that the proceeds from the sale or disposition of the hotel property and all assets of the three debtors would be distributed in a certain order to various creditors, including the Internal Revenue Service; the State of Michigan; the Michigan Employment Security Commission; Oakland County; the City of Southfield; all allowed pre-petition priority claims; and all allowed general unsecured claims. On January 23, 1996, the Alumni trustee filed a "Motion for Settlement of Litigation, Compromise of Claims, and Other Relief" which set out the terms of the agreement and asked for the court's approval. Although the union and Oakland County initially objected to some provisions of the settlement, they withdrew their objections and agreed to the settlement, and on February 26, 1996, this Court entered an order approving the settlement.
On May 23, 1996, this Court entered an order approving sale of the Ramada Inn hotel property, and the property was sold for $2.5 million.
*630 III. Discussion
Fine and corporations in which he has an interest seek payment of some of their attorneys' fees which were incurred during the period beginning December 20, 1995, and ending August 1, 1996. Fine contends that his counsel rendered a substantial benefit to the Alumni, Blue Realty, and Villa estates because they "spearheaded" the "beginning of settlement discussions" in December of 1995 and were "the chief architect of a novel settlement framework to address all of the assets and liabilities in three separate, independent estates together[.]" Counsel asserts that it was "the designer of the various levels of priorities for payments" and that it "supplied the vision and structure to create order from chaos," thereby avoiding "many hours of discovery, preparation and litigation" and bringing the bankruptcy cases to a more expeditious conclusion. Fine concedes that he received a benefit from the settlement, but contends that the settlement also substantially benefitted all parties by providing a "significant savings of expense to the estates."
11 U.S.C. § 503(b) provides that a creditor's attorney fees may be allowed as administrative expenses of the debtor's estate under certain circumstances. Section 503 reads, in relevant part:
(b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including
(3) the actual, necessary expenses, other than compensation and reimbursement specified in paragraph (4) of this subsection, incurred by
(D) a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under § 1102 of this title, in making a substantial contribution in a case under chapter 9 or 11 of this title;
(4) reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such an attorney or accountant[.]
Subsections 503(b)(3)(D) and 503(b)(4) have been described as "an accommodation between the twin objectives of encouraging `meaningful creditor participation in the reorganization process,' and keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors." Lebron v. Mechem Fin. Inc., 27 F.3d 937, 944 (3d Cir.1994) (internal citations omitted). See also Pierson & Gaylen v. Creel & Atwood (In re Consol. Bancshares, Inc.), 785 F.2d 1249, 1253 (5th Cir. 1986); In re United States Lines, Inc., 103 B.R. 427, 429 (Bankr.S.D.N.Y.1989); General Elec. Capital Corp. v. Nigro (In re Appliance Store, Inc.), 181 B.R. 237, 242 (Bankr. W.D.Pa.1995). Administrative expenses under § 503(b) are priority claims paid directly from the bankruptcy estate and reduce the funds available for creditors and other claimants. Accordingly, § 503(b) is strictly construed. Mfrs. Hanover Trust Co. v. Bartsh (In re Flight Transp. Corp. Sec. Litig.), 874 F.2d 576, 581 (8th Cir.1989); In re United States Lines, Inc., 103 B.R. at 429.
The bankruptcy court exercises its discretion to determine whether to allow administrative expenses and the appropriate amount of expense to award. In re Lister, 846 F.2d 55, 56 (10th Cir.1988); In re Consol. Bancshares, Inc., 785 F.2d at 1252. Whether the applicant has rendered a substantial contribution which entitles him to an allowance is a question of fact for the court to determine. Lebron, 27 F.3d at 946; In re Flight Transp. Corp. Sec. Litig., 874 F.2d at 582. The burden is on the applicant to prove by a preponderance of the evidence that he has made a substantial contribution. In re Lister, 846 F.2d at 57; In re Appliance Store, Inc., 181 B.R. at 242. The applicant bears this burden because as a creditor, he owes no fiduciary obligation to the bankruptcy estate and is presumed to act in his own best interest. In re Flight Transp. Corp. Sec. Litig., *631 874 F.2d at 581; In re United States Lines, Inc., 103 B.R. at 430; In re Appliance Store, Inc., 181 B.R. at 242; Lebron v. Mechem Fin. Inc., 27 F.3d at 943-44. As one court has articulately explained,
Compensation cannot be freely given to all creditors who take an active role in bankruptcy proceedings. Compensation must be preserved for those rare occasions when the creditor's involvement truly fosters and enhances the administration of the estate . . . The integrity of Section 503(b) can only be maintained by strictly limiting compensation to extraordinary creditor actions which lead directly to tangible benefits to the creditors, debtor or the estate.
In re D.W.G.K. Restaurants, Inc., 84 B.R. 684, 690 (Bankr.S.D.Cal.1988).
A. § 503(b)(3)(D) does not allow fees for the Alumni Chapter 7 case.
Fine's motion for allowance of fees argues that the requirements of § 503(b)(3)(D) and (b)(4) are satisfied because the settlement orchestrated by Fine's counsel benefits three estates: Alumni, a Chapter 7 case; Blue Realty, a Chapter 11 case, and Villa, also a Chapter 11 case. By its own terms, § 503(b)(3)(D) and (b)(4) apply only in Chapter 9 and Chapter 11 cases. See In re Beck-Rumbaugh Assoc., Inc., 68 B.R. 882 (Bankr.E.D.Pa.1987), aff'd, 84 B.R. 369 (E.D.Pa.1988) (no statutory authority to award compensation for substantial contribution in Chapter 7 case). Although the Alumni bankruptcy case began as a Chapter 11 proceeding and then converted to a Chapter 7 proceeding, all the work done by Fine's counsel occurred after the Chapter 7 conversion had taken place. Section 503(b)(3)(D) does not authorize fee awards for expenses incurred after a case is converted from Chapter 11 to Chapter 7. Lebron, 27 F.3d at 946. Therefore, Fine cannot rely on benefits to Alumni to support an argument for fees under § 503(b)(3)(D) and (b)(4).
B. The applicants' status as "creditor" or "equity security holder."
As an initial matter, the applicant must establish that it is actually one of the parties allowed to apply for payment of expenses under § 503(b)(3)(D) and (b)(4). Section 503(b)(3) expressly applies to a creditor or an equity security holder. Martin Fine is an equity security holder of Blue Realty and Villa and can seek payment from these estates under § 503.
The application for allowance of fees describes "The Davenport Entities" as creditors. In fact, neither Blue Realty nor Villa list a creditor designated "The Davenport Entities." None of the Fine corporations involved in the adversary proceeding (649 Broadway Equities Co., Davenport Trading Corp., Twelve Lions Renaissance Corp., 644 BRDY Realty, Inc., and WCC BOCA Corp.) which presumably comprise the Davenport Entities are listed in Blue Realty's schedules or disclosure statement as creditors. Accordingly, the record does not support the assertion that these companies are creditors of Blue Realty which are entitled to seek expenses from the Blue Realty estate under § 503. Only two of these business, Twelve Lions Renaissance Corp. and 644 BRDY Realty, Inc., are listed in the schedules as creditors of Villa. Therefore, Twelve Lions Renaissance Corp. and 644 BRDY Realty are the only "Entities" entitled to bring this application under § 503 for payment from the Villa estate.[17]
C. Fine, Twelve Lions Renaissance Corp. and 644 BRDY have failed to meet their burden of showing that their efforts and efforts of their counsel resulted in a "substantial contribution" to Blue Realty and Villa.
The billing records attached to Fine's motion for allowance of fees show that Fine's counsel actively participated in settlement discussions. However, extensive participation in a case, without more, does not constitute substantial contribution. In re *632 United States Lines, 103 B.R. at 430; In re Best Prod. Co., Inc., 173 B.R. 862, 866 (Bankr.S.D.N.Y.1994); In re Appliance Store, 181 B.R. at 242. In order to meet the requirement of "substantial contribution" in § 503(b), an applicant must show that his efforts directly resulted in a demonstrable, material benefit to the debtor's estate and the creditors. In re Lister, 846 F.2d at 57; Lebron, 27 F.3d at 943-44; In re Flight Transp. Corp. Sec. Litig., 874 F.2d at 582; In re United States Lines, Inc., 103 B.R. at 429; In re Appliance Store, Inc., 181 B.R. at 242. The court considers whether the applicant's services were rendered solely to benefit the creditor or to benefit all parties in the case; whether the services provided a direct, significant, and demonstrable benefit to the estate; and whether the services duplicated those provided by attorneys for the debtor or the committee of unsecured creditors. In re Appliance Store, 181 B.R. at 242-243 (citing In re Jack Winter Apparel, 119 B.R. 629, 633 (E.D.Wis.1990)). Services which would "merely deplete the assets of an estate without providing a corresponding greater benefit" are not allowed under § 503(b)(3)(D) or § 503(b)(4). In re United States Lines, 103 B.R. at 429 (citing In re Texaco, Inc., 90 B.R. 622, 632 (Bankr.S.D.N.Y.1988)); In re Ace Fin. Co., 69 B.R. 827, 831 (Bankr.N.D.Ohio 1987); In re Baldwin-United Corp., 79 B.R. 321, 344 (Bankr.S.D.Ohio 1987).
Here, Fine and his counsel claim that their efforts toward settlement and toward creating a plan for distribution of proceeds constitute "substantial contribution." There is no question that a settlement agreement was ultimately reached in this case, and there is no dispute that Fine's counsel worked diligently to define the terms of settlement. However, encouraging negotiation and proposing agreeable terms is a routine task, and often the professional obligation, of a creditor's counsel. There is nothing extraordinarily beneficial to the debtors about such activity. The fact that these negotiations did not take place until Fine and his corporations were forced to defend against an adversary proceeding suggests that Fine was primarily motivated by a desire to limit his individual and corporate liability, not by an interest in participating in the reorganization process.
As with any good settlement, this settlement provided some benefits to the parties and also required the parties to accept some concessions. Although the estates and certain creditors benefitted to some extent from the settlement, Fine and his counsel cannot take credit for actually settling the case, because settlement is not a unilateral action. In order to reach a settlement, all the interested parties, including the Alumni trustee, the union employees and the National Labor Relations Board, the tax authorities and other creditors, reached an agreement. If Fine's fees were allowed under § 503(b)(3)(D) and (b)(4) for negotiating to reach agreement, all the parties to this settlement might well argue that they, too, made a "substantial contribution" by agreeing to compromise their claims.
Fine's counsel argues that this settlement was especially beneficial because it resolved three bankruptcy proceedings at once. As explained above, § 503(b)(3)(D) and (b)(4) do not encompass claims for contribution to the Alumni Chapter 7 case. The settlement did resolve pending disputes in two Chapter 11 cases, Blue Realty and Villa. In essence, the settlement consolidated the assets of the three estates to share among the creditors who had filed claims against each estate. Although this might be a unique manner of settlement, it was possible here because of the close pre-petition relationship of these debtors to each other and to Fine. This pre-petition relationship initially hindered the reorganization process by generating litigation over the ownership of the hotel property and causing the Alumni creditors to also assert their claims against Blue Realty and Villa. It spawned the adversary litigation, in which the Alumni trustee asserted that the assets of Blue Realty and Villa actually belonged to the Alumni estate. The adversary proceeding was filed to determine the ownership of the hotel real estate/property and gathered all three debtors into one forum to resolve this issue. Settling the issue of which estate was entitled to the property would necessarily affect all three debtors' cases. Under these circumstances, the Court is not persuaded *633 by Fine's argument that "substantial contribution" occurred when the Blue Realty and Villa cases were resolved with a single settlement.
Fine and his attorneys argue that if these same expenses were submitted by the Alumni trustee or the attorneys for the debtors-in-possession, they would be compensable. Fine argues that "[t]here is no reason, therefore, that the same tasks, performed by counsel for a creditor or equity security holder[,] should be treated any differently." This argument flies in the face of the Bankruptcy Code, which expressly mandates different standards for allowing compensation for a creditor's legal expenses than for the trustee's legal expenses. The trustee's counsel may be compensated for reasonable, necessary expenses, even if counsel did not render a "substantial contribution" to the estate, the debtor, or creditors.[18] In contrast, the Code requires a creditor to show a "substantial contribution" before his expenses will be considered compensable.
Finally, this Court must note that although the Court never found that Fine or his entities committed any fraud or any fraudulent conveyance, because the adversary proceeding alleging these claims was settled, it is nevertheless abundantly clear that the complexity of these estates and the transactions among them was caused by Fine himself and no one else. It is equally abundantly clear that fairness and equity will simply not permit this Court to grant Fine's request for fees for his attorneys, to the prejudice of creditors, to settle the difficult legal issues arising from the complexity of the estate and the transactions that he created.
IV. Conclusion
This Court finds that Fine and his related businesses have failed to show that they and their counsel produced a "substantial contribution" to the Blue Realty and Villa estates which would entitle them to recoup fees from the debtors' estates under § 503(b)(3)(D) and (b)(4).
An appropriate order denying the motion will be entered.
NOTES
[1] The application for allowance of fees does not define the "Davenport Entities." Presumably, this term refers to the defendant corporations in the adversary proceeding 649 Broadway Equities Co., Davenport Trading Corp., Twelve Lions Renaissance Corp., 644 BRDY Realty, Inc., and WCC BOCA Corp. who are affiliated with and/or controlled by Martin Fine.
[2] During the pendency of its bankruptcy case, Alumni terminated its Days Hotel franchise agreement and entered into a franchise agreement with Ramada, which the court approved on May 18, 1993.
[3] Alumni's Fourth Amended Disclosure Statement provided following description of Martin Fine: "The debtor's principal, Martin Fine, is an individual who holds three college degrees: University of Pennsylvania, B.A., 1960; University of Michigan Law School, J.D., 1963 and New York University Law School, L.L.M., 1965. He has been involved in real estate investments for over 20 years and has specialized in turnarounds of distressed real estate businesses, and the operation and management of buildings. Mr. Fine, in his early days[,] was in fact a bellhop at a major hotel and his subsequent 20 years of legal and real estate experience have provided him with sufficient opportunity to understand the necessities of operating a single building major hotel operation."
[4] Fine also maintained that Broadway and Alumni entered into their sale agreement on September 27, 1989, and that March 19, 1990 was simply the date that this agreement "closed." (Alumni's Response to Objections to Disclosure Statement filed August 6, 1993 and Fourth Amended Debtor's Disclosure Statement filed September 13, 1993). However, Alumni's 1990 federal tax return reported that Alumni owned the building at the beginning of the tax year as an asset valued at $3,339,612, and that on March 1, 1990, Alumni sold the asset for $4.2 million.
[5] The principle amount of the obligation was $500,000.
[6] The schedules also disclosed that Alumni had assets of furnishings, fixtures, and leasehold improvements worth $145,000. However, in a Motion to Assume Non-Residential Real Property Executory Contract, the debtor's attorney stated that 649 Broadway Equities Co. owned the physical assets of the building, including furniture and fixtures of the hotel.
[7] Schedule D, filed October 16, 1991, indicated that Broadway was Alumni's primary secured creditor, with a $220,000 claim for unpaid rent, secured by the hotel lease.
[8] Schedule F, filed October 16, 1991, listed creditors holding unsecured non-priority claims. Schedule F showed a claim by Broadway for a loan of $500,000; a claim by Davenport Trading Corporation, a corporation in which Fine has an interest, for a loan of $444,381; and a claim by Smythe-Burton Consulting Corporation, a corporation in which Fine has an interest, for $575,000. These claims total $1,519,381.
[9] The principal amount of the obligations amounted to $500,000.
[10] The principal amount of this obligation was $1,500,000.
[11] Although Villa was not initially a named defendant in the Taunt v. Blue Realty case, Villa was named as a party in the First Amended Complaint, filed October 24, 1995.
[12] Taunt v. 17017 Blue Realty Corp., et al. (In re Alumni Hotel Corporation), First Amended Complaint, p. 5.
[13] Although the Blue Realty schedules initially disclosed "no inventory," Mr. Fine stated at the 341 hearing that Blue Realty actually owned the furniture within the hotel.
[14] Villa's schedules also listed assets of furniture and miscellaneous hotel personal property of $36,000.
[15] By December of 1993, the NLRB assessed the wage and benefit claims, with administrative expenses and interest, as $431,895.
[16] The Israel Discount Bank had asserted a secured claim against the hotel property of $2,234,073.84. It agreed to release all but $500,000 of this claim in the settlement, although it did not release any claims against Fine's other non-debtor companies.
[17] Although many of the Fine businesses were creditors of the Alumni estate, a creditor cannot seek payment of expenses under § 503(b)(3)(D) and (b)(4) in a chapter 7 case. As the preceding section explains, Alumni was proceeding under chapter 7 and, therefore, is irrelevant to the "substantial contribution" analysis here.
[18] 11 U.S.C. § 330(a)(1)(A).
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410 Pa. 389 (1963)
Tower Estate.
Supreme Court of Pennsylvania.
Argued January 17, 1963.
March 19, 1963.
*390 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Lewis H. Van Dusen, Jr., with him Cuthbert H. Latta, Thomas Reath, and Drinker, Biddle & Reath, for appellants.
William H.S. Wells, with him Thomas S. Weary, John R. Suria, and Saul, Ewing, Remick & Saul, for appellees.
Philip Klein, guardian and trustee ad litem, in propria persona, appellee.
OPINION PER CURIAM, March 19, 1963:
Charlemagne Tower (testator), a resident of Philadelphia, died on July 24, 1889. Under the pertinent terms of his will, dated May 21, 1889, he provided, inter alia:
"Item 4. I have living at the date of this my Will ten lineal descendants: that is to say, five children and five grandchildren. [He then named the five children and five grandchildren.]
"Item 5. All the rest, residue and remainder of all my Property and Estate whatsoever and wheresoever, *391 Real, Personal or Mixed, I give devise and bequeath unto . . . [trustees, in trust for my wife and children]. . . At and after the decease of each of my said five children, severally and successively, his or her share of the income from my Residuary Estate, as above designated shall be appropriated and divided among the children and issue of deceased children and issue of deceased children of each one of my children as he or she may successively die, in the same shares and proportions they would take in distribution under the intestate laws of Pennsylvania from their deceased parent, and in like manner the share of income which may accrue to any of grandchildren or more remote lineal descendants under this my Will and who may die before the period appointed for the distribution of the principal of my residuary estate shall in like manner accrue to their children and issue of deceased children as above provided, and such payment or application of the income of a deceased child's or grandchild's share among his or her children and issue shall continue until the arrival of the period for division of the capital of my Residuary Estate, and if any one or more of my children or grandchildren shall die without leaving any issue to survive him or her, then the share of income theretofore appointed and payable to such decedent shall go to the other of my children or grandchildren, (as the case may be), then living and the issue of any others of my said children or grandchildren who may then be deceased, in the same way and manner in all respects as are limited and provided in respect to their original shares which shall simply be augmented thereby but in all respects governed by the same provisions as applied to their original shares, PROVIDED always, however, that I authorize and empower each one of my children or grandchildren who may leave a husband or wife surviving him or her, by his or her Last Will and Testament, or any writing in *392 the nature thereof by him or her signed, to make provision for any surviving husband or wife either of them may leave surviving, to continue during life but not to exceed one-fourth of the income which would have been payable to such testator or appointer if he or she had remained living. . . . I direct the division of all the capital of my Residuary Estate among all my lineal descendants then living, to each an equal fractional share, thereof without regard to their stock or the degree of their descent from me . . . ."
. . .
"`Item 12. If I have not already sufficiently declared my intention in respect thereto, I do now declare that . . . each and all of the beneficiaries who may die leaving issue such issue shall succeed to the share which the decedent would have taken if living, and if more than one, in equal shares. . . .'"
The income from this testamentary trust initially was paid, in accordance with the trust's terms to testator's widow and children, all of whom are now dead. The income is now payable to testator's living grandchildren and spouses and descendants of deceased grandchildren. One of testator's grandchildren (whose share of the trust income was 5/48s), Geoffrey Tower, died on March 26, 1957. Surviving him were his widow who died on December 4, 1959, two natural children and two children adopted in 1941.
Subsequent to the death of Geoffrey Tower and his widow, an account was filed; at the audit of that account, Geoffrey Tower's share of the income from the trust was awarded to his two natural children, the adopted children apparently not having received notice of the audit. On January 16, 1962, a petition to review the adjudication, which awarded the income to the two natural children, was presented to the Orphans' Court of Philadelphia County and the adjudication was opened to determine what, if any, rights the two adopted *393 children had to share in Geoffrey Tower's portion of the income from the trust. On March 20, 1962, Judge LEFEVER, the auditing judge, decided that the two adopted children had no rights in the testator's estate. On exceptions filed to this supplemental adjudication, the court en banc, speaking through Judge BOLGER, confirmed this supplemental adjudication.
The question presented upon this appeal is: "Where: A testator gives a share of income to a grandson for life and directs that at the grandson's death such income shall pass to the grandson's `children and issue of deceased children . . . in the same shares and proportions they would take in distribution under the intestate laws of Pennsylvania from their deceased parent' and [t]he grandson dies leaving four children two by birth and two by adoption; . . ."[*] do the two adopted children share equally with the two natural children the share of such income?
After a careful examination of the will of this testator and the authorities cited in the excellent briefs submitted by appellants and appellees, we find ourselves in full agreement with the conclusion reached by the auditing judge and confirmed by the court en banc: ". . ., the instant testator's will controls the controversy. His meaning must be determined from his will in the light of the law in effect on July 24, 1889. His will begins with words of blood, viz., `children', `grandchildren', `issue' and `lineal descendants', and closes with `descent from me', also words of blood. It is inescapable that testator, by the language he used, intended to include only relatives of his blood and to exclude strangers to the blood, as subsequent takers of income on a grandchild's death. [The adopted children], therefore, are not entitled to share."
Decree affirmed.
*394 DISSENTING OPINION BY MR. JUSTICE ROBERTS:
The conclusion of the majority places too limited and too narrow an interpretation upon testator's language, his intention and the future objects of his generosity. I am unable to conclude that testator, in 1889, in employing the words "children" and "issue", intended to exclude the two adopted children of his grandson (adopted by him in 1941) from participating with that grandson's natural children (at the grandson's death in 1957) in the share of income formerly received by their father. I would construe testator's language to include his grandson's children by both adoption and birth. I dissent.
Mr. Justice MUSMANNO joins in this dissenting opinion.
NOTES
[*] From brief of appellant.
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189 A.2d 74 (1963)
William WEBB, Jr., Plaintiff,
v.
Patrick O'ROURKE, Joseph Conchado, Jerome Krakauskas, and William O'Rourke, Defendants.
Superior Court of Delaware, New Castle.
March 12, 1963.
John Biggs, III, and Joseph Geoghegan (of Berl, Potter & Anderson), Wilmington, for plaintiff.
Sidney Balick, Wilmington, for all defendants.
LYNCH, Judge.
Plaintiff, a scout master, took his scout troop to Thompson's Bridge in this County, on May 19, 1962, for an overnight camp out. On May 20, 1962 plaintiff received a severe beating at the hands of defendants, residents of Philadelphia. He sues for damages for the injuries inflicted on him.
Defendants had come to the camp site and were apparently celebrating the birth of a child, born to the wife of one of the defendants; seemingly they took certain personal property of the boy scouts, and when the plaintiff inquired of the defendants whether they had taken that property, the defendants assaulted and severely beat the plaintiff. The assault was allegedly unprovoked. The plaintiff suffered severe personal injuries and brought this civil action against those he claims assaulted him.
As a result of the assault and battery on plaintiff, criminal proceedings were instituted against the defendants and they were placed under arrest and jailed. In time they made bail. The Grand Jury returned indictments on June 4, 1962. Previously, on May 20, 1962, complaints had been made before a Justice of the Peace against the defendants and they were taken into custody and held for criminal action in this Court and bail fixed for their release.
*75 Plaintiff filed his civil suit on June 1, 1962. The record shows all defendants were served personally in this case, while at trials or on appearance for arraignment on the indictment.
Defendants have appeared specially for the purpose of moving to dismiss the complaints against them pursuant to Rule 12(b) (2) (5), Rules of the Superior Court, Del. C.Ann. on the ground that the Court lacks jurisdiction over their person, service of process having been insufficient in that it was made upon them when they were present in this jurisdiction only in compliance with criminal process, or in response to appear while they were out on bail.
This opinion has been prepared and is filed in the disposition of such motion to dismiss.
Defendants predicate their motion to dismiss on 11 Del.C. § 3524(a), which reads as follows:
"If a person comes into this State in obedience to a summons directing him to attend and testify in this State he shall not while in this State pursuant to such summons, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this State under the summons."
This section is a part of the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, which was adopted in this state in 1937, Volume 41 Del.Laws, Ch. 214. By its very terms the statute is limited to witnesses; nowhere in the statute is any reference made to persons charged with commission of a crime. Obviously the statute is not applicable, and it cannot be the basis of any relief, such as defendants seek by their motion to dismiss. The defendants here were charged as parties.
There is a statement to be found in § 122 Wooley, Delaware Practice, that "parties to a suit, their attorneys, counsel and witnesses are for the sake of public justice, privileged from arrest in civil actions, in going to, attending upon and returning from the Court". No authorities are cited, but in In re Dickenson, 3 Harr. 517 (Super. Ct.1842), the Court ordered the discharge of a witness who has been subpoenaed to testify at a trial when the witness was served with civil process. In 20 A.L.R.2d at page 165 the statement may be found:
"The rule that parties to civil actions, as well as witnesses and attorneys, are immune from service of process while attending court, is of very early origin. It is mentioned in the Year Books of England, as far back as Henry VI. At the outset, it seems to have been applied merely to prevent civil arrest of suitors, witnesses, and attorneys while before the bar of justice. But as the years passed, the rule was enlarged, until today full protection from all forms of process is generally accorded civil litigants, witnesses, and attorneys, while going to, attending, and returning from court, whether resident or nonresident of the jurisdiction."
It has to be noted that at common law the privilege or immunity from civil process was limited to civil causes; nothing can be found where the common law recognized the privilege as applicable in criminal matters.
The cases are in hopeless conflict as to whether a non resident involved in a criminal proceeding, as a party, has any immunity from civil process while in the state, either pursuant to arrest or in response to a bail bond conditioned upon the defendant's appearing for trial or arraignment. See generally, 42 Am.Jur. Process §§ 152 and 153; 72 C.J.S. Process § 82 and annotations in 14 A.L.R. 776, 40 A.L.R. 93, 46 A.L.R. 316 and 65 A.L.R., superseded by annotation in 20 A.L.R. 2d 160, 163, collecting a great number of cases.
*76 We, of course, are not concerned with an instance where the defendants were here as witnesses when served. The Court rules they were not here as witnesses, but were parties defendant in criminal actions, arising while they were in this state and for which criminal actions they were arrested while here after the crime had been committed. We are not concerned with situations where the criminal process was used fraudently or as a ruse to get the defendants into this state or where they were extradited from a foreign state. Seemingly the defendants chose voluntarily to come here for the celebration of the birth of a child to the wife of one of the defendants, and while here for such purpose they took the occasion to assault the plaintiff. It was while they were here in response to criminal process arising from the assault incident that they were served with civil process in the civil suit plaintiff brought against them to recover for the damages they inflicted on him in the course of assaulting him.
A reading and studying of the many cases on the subject lead only to confusion in one's thinking; it is not possible to reconcile the various holdings even those cases that stand for either one or the other proposition. The Federal cases are of no particular great help; they have settled on a rule and apparently stand by it although the cases are not always clear just why. Some cases involve statutes, which, of course, render them inapposite.
The case for recognizing an immunity from civil process to those involved in criminal prosecutions is well set forth by the Maryland Court of Appeals in Feuster v. Redshaw, 157 Md. 302, 145 A. 560 (1929). In that case the Court said (145 A. at 562):
"No useful purpose will be served by stating and discussing these irreconcilable decisions of other appellate tribunals, as our own reports illustrate the principles upon which the question, whether or not a non-resident is exempt from service of process issuing in an action instituted against him in a court of this state while he is in attendance upon the trial of a criminal proceeding either as the accused or as a witness, should be decided.
"The reason for the exemption is because it is grounded on public policy and necessary for the due administration of justice. The rule at once tends to assure the attendance of nonresident witnesses and suitors, and the free and complete presentation of the case in a trial in which the witness and the parties will not be distracted, harrassed, or intimidated by the prospect of other litigation. So beneficial is the rule that the inclination of the court is to extend its scope. * * *
"These reasons are as applicable to criminal prosecutions as they are to civil actions, and, on principle, should have no different conclusion. The decisions, which hold that the exemption does not apply to parties arrested in criminal proceedings, put it usually on the ground that in a civil case the appearance of the parties and witnesses is purely voluntary, while the accused's attendance could be enforced by arrest, extradition, or other form of legal compulsion. It is inaccurate to say of a nonresident defendant that his appearance in a suit to defend his rights is wholly voluntary. He comes under the compulsion of interest or necessity. * * * And it is a sound principle of law that does not subject an accused party, while presumed by the law to be innocent, to the peril of a surrender of his privilege of being sued in a civil action in his own state, by appearing and defending himself in the jurisdiction where he is charged with the crime. However, the rationale of the rule does not depend upon the voluntary nature of the nonresident's appearance, but, as previously indicated, *77 upon broad grounds of public policy and individual rights. * * *"
It may be observed that with the growth of the statutes providing for service of process on non residents in automobile accident cases it tends to lessen the persuasiveness of the reasoning used by the Maryland Court of Appeals.
The case for holding there is no immunity from civil process to non residents involved in criminal proceedings was well stated by the Connecticut Supreme Court of Errors in Ryan v. Ebecke, 102 Conn. 12, 128 A. 14, 40 A.L.R. 88 (1925), which was premised on an opinion of the New York Court of Appeals, Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 90 N.E. 962, 27 L.R.A.,N.S., 333 (1910).
The Connecticut Court, after reviewing the New York case, said (128 A. 15):
"To extend, to persons under bail who attend court to be tried on criminal charges, the rule exempting parties and witnesses attending trial of a civil action, is properly said, in the extract just stated, to carry the rule beyond the reasoning upon which it is based. As a party or witness he could not be compelled to attend in a civil case, or to submit to the jurisdiction in which he attends. He comes voluntarily either to aid others as a witness, or to submit his own interests for decision. For this reason the commonlaw privilege of exemption from service of process is extended to him, by reasons of public policy. In a criminal case he aids the administration of justice in no way. Where custody of his person is obtained by arrest within the jurisdiction or through extradition, he is there to answer for a crime. He is in the state against his will. If kept within the state in an original arrest there, he is subject to the service of civil process, likewise if he is extradited and held in custody. If he gives bail and remains in the state, the same result follows. So we have the cases of an arrested resident, whether with or without bail, of an arrested nonresident who gives bail and remains in the state, of an extradited accused in custody, all subject to civil process, and only an arrested or extradited nonresident out on bail favored with the exemption. The reasoning of these cases which allow the exemption seems largely to apply to him the character of a witness, but this reason seems fallacious, since he would be obliged to attend (unless he forfeited his bail) whether or not he intended to testify as a witness. In most of the jurisdictions in which the exemption allowed by the trial judge in the instant case is sustained, it is justified by the fact that the accused defendant is to become a witness for himself. But this reasoning would equally apply to an extradited defendant, yet it has been quite uniformly held that such a person is not exempt from service of civil process. The other ground for granting the immunity is that it makes for the due administration to have all obtainable parties present, and their presence should be encouraged. This is merely an extension of the reasons underlying the liberal rule in civil cases, and when applied to criminal cases apparently for the sake of having a uniform and comprehensive reason, neglects certain obvious distinction."
There is much to be said also for the observations made by the Supreme Court of Washington in State ex rel. Alexander-Coplin & Co. v. Superior Court for King County, 186 Wash. 354, 57 P.2d 1262 (1936).
For instance the Court said (57 P.2d at 1263):
"There are few questions in the entire field of law that are more provocative of argument and more illustrative of differences in judicial opinion than the question of the validity of *78 service of process upon nonresidents temporarily within a particular state. * * *"
Later, quoting from a prior Washington Court opinion, the Court said (57 P.2d at 1264):
"`In case a resident of one state voluntarily and for his own personal pleasure or profit goes into another jurisdiction and there injures some resident of that jurisdiction, for which injuries recovery is sought against him in an action brought in the state where the injuries were suffered, in which action process is served upon him, it seems unreasonable and illogical to contend that he is exempt from service of process because when the same was served upon him he was under arrest tentatively charged with an offense growing out of the accident which is the basis of the action for damages, or even merely under subpoena to attend a coroner's inquest called to investigate the accident in which he was one of the unfortunate participants.
"`We do not care to extend the rule allowing immunity in certain cases as laid down by this court in State ex rel. Gunn v. Superior Court, supra, and we believe that to affirm the judgment of the superior court in this case would be to unreasonably extend such rule, in opposition to the weight of authority and against sound reason, which should wherever consistent with law, lead courts to uphold the right to the trial of an action for damages in the forum of the place where the damages were suffered, and where, presumably, more complete justice may be done to all parties concerned by reason of the presence of witnesses and the ease with which court and jury may view the locality where the injuries occurred.'"
The Court then made this comment (Id.):
"This language is most persuasive in its application to the facts before us. The relators came to this state for their own personal profit. In the conduct of their business, according to the complaint, they perpetrated a fraud upon a resident of this state, causing him great financial loss. The action brought against the relators is in the forum of the state and county where the damages were suffered, and, presumably, complete justice will more nearly be effected in that forum because of the availability of witness and the greater certainty of presenting to a jury all the facts inherent in the case."
After a careful review of the many conflicting decisions the Court chooses what it terms the Connecticut rule, and concludes by stating that it is for the General Assembly not the Courts to extend the privilege or immunity from service of civil process in cases now existent in civil litigation to cases involving defendants charged in criminal prosecutions if it seems desirable to adopt such a policy. No such privilege was recognized as a part of the common law when Delaware became a state and I do not consider the Courts as the body to extend the policy.
The Court considers that the better reasoned cases refuse to extend the common law privilege applicable to civil litigation to instances involving defendants in criminal cases. It is for this reason the Court sees fit to refuse the relief sought by these defendants.
For the reasons appearing herein defendants' Motion to Dismiss is denied. Counsel may present an order to that effect.
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623 F. Supp. 1106 (1985)
Bickett D. FORT, Plaintiff,
v.
Amos E. REED, et al., Defendants.
No. C-83-345-JLQ.
United States District Court, E.D. Washington.
December 12, 1985.
*1107 Margaret Harris and Mark Wilson, University Legal Assistance, Spokane, Wash., for plaintiff.
Michael Lynch, Asst. Atty. Gen., Dept. of Corrections, Olympia, Wash., for defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
QUACKENBUSH, District Judge.
Plaintiff filed this action under 42 U.S.C. § 1983 alleging defendants deprived him of access to the courts, unlawfully transferred him and deprived him of the possibility of furlough. Defendants' Motion for Summary Judgment (Ct.Rec. 31) and plaintiffs' Cross-Motion for Partial Summary Judgment (Ct.Rec. 41) were heard by this court on November 12, 1985. Margaret Harris and Mark Wilson represented plaintiff and Michael Lynch appeared on behalf of defendants. Plaintiff was granted an additional five days in which to respond to defendants' Motion for Summary Judgment.
Upon consideration of the pleadings and all documents regarding the summary judgment motions, the court finds there is no dispute as to the material facts. The relevant factual background is as follows: On October 29, 1982, plaintiff was transferred from Washington State Prison (WSP) in Walla Walla, Washington to Indian Ridge Treatment Center (IRTC) in Arlington, Washington. Because plaintiff was engaged in litigation at that time, he requested access to a more extensive law library than that available at IRTC.[1] At a classification hearing held at IRTC, plaintiff proposed five options to resolve his lack of access. These options including the proposal of transferring Mr. Fort back to WSP where an extensive law library is located. The committee choose this option and plaintiff was transferred to WSP on November 22, 1982. Other facts will be introduced as they become relevant.
Plaintiff bases his denial of access claim on two grounds. First, he contends the facilities at IRTC are inadequate.[2] Mr. Fort, however, has failed to show how this situation interferred with his ability to prosecute his actions in court. The protected right is in access to court not in access to a complete law library. Although the ability to use such facilities may under some circumstances be necessary to ensure the right of access to the courts, plaintiff has not demonstrated that his opportunity to litigate his cases was unconstitutionally impinged upon during the four weeks he was incarcerated at IRTC. Moreover, once plaintiff made his need to have extended access to a more complete law library known, defendants acted to protect his right of access to the courts.
It is defendants' response to his need that plaintiff challenges in his second basis. Mr. Fort contends transferring him to WSP and the law library was an unlawful method of complying with the constitutional requirement of access. In support of their actions, defendants cite Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977) in which the Supreme Court upheld a state plan which provided that inmates requiring access to legal materials would be transferred to certain institutions within the state system which housed such facilities.
Plaintiff argues Bounds is not controlling because the transfers which occurred in that case were temporary while Mr. Fort remained at WSP until he was released on parole. The Supreme Court, however, did not indicate that its decision in Bounds hinged on the temporary nature of the transfers. In fact, the Court stated other states' plans need not be identical to that of North Carolina in order to meet *1108 constitutional muster. Id. at 832, 97 S.Ct. at 1500. The Court went on to encourage the states to experiment within their existing institutional structures in order to provide the requisite access. The fact that Mr. Fort's transfer in fact became permanent does not, in and of itself, invalidate defendants' actions.
Plaintiff's "right to access is not absolute, but it must be `adequate, effective and meaningful'". Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir.1984) (quoting Bounds v. Smith, supra, 430 U.S. at 822, 97 S.Ct. at 1495). In light of the fact that inmates have no protected interest in being incarcerated in any particular institution within the state system, Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), the court finds plaintiff's right of access to the courts was not violated by his transfer to WSP.[3]
Plaintiff next contends defendants transferred him in retaliation for exercising his right of access. Defendants assert they transferred plaintiff in order to protect that right. (See Affidavit of Lee Johnson attached to Ct.Rec. 45). Once movants satisfy their initial burden of showing there exists no disputed material facts, the burden shifts to the opponent to come forward with specific facts establishing that genuine issues remain for trial. Fed.R.Civ.P. 56(c) and (3); Feldman v. Simkins Industries, Inc., 679 F.2d 1299 (9th Cir.1982). Generally, the opponent must present his facts in evidentiary form and cannot rest on his pleadings. However, where, as here, the plaintiff signs his complaint "under penalty of perjury," the court will treat the complaint as verified. Accordingly, to the extent the facts asserted in the complaint may be deemed to be within plaintiff's personal knowledge, the document will be treated as an affidavit presented in opposition to the motion for summary judgment.
In his complaint, plaintiff alleges defendants intended the transfer as retaliation. He attempts to support his theory by arguing that the defendants' selection of the most restrictive of the five options demonstrates their animosity toward him. The court, however, does not agree that this fact gives rise to a genuine dispute as to defendants' motive. In fact, they acted in one of the manners proposed by plaintiff. Thus, the only evidence of retaliation is plaintiff's bald assertion. Because defendants' subject motivation could not be within Mr. Fort's personal knowledge, the court finds plaintiff has failed to establish that a genuine issue remains for trial regarding his retaliation contention. Because plaintiff has failed to demonstrate any retaliation, defendants are entitled to judgment as a matter of law on this claim.
Finally, plaintiff argues the transfer interferred with his ability to obtain furlough. Plaintiff, however, has no protected interest in release prior to the expiration of his valid sentence. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2103, 60 L. Ed. 2d 668 (1979). Because the Department of Corrections may exercise discretion in the grant or denial of furlough, there is no state created liberty interest in such status. See In re Dowell, 100 Wash.2d 770, 674 P.2d 666 (1984); Baumann v. Arizona Department of Corrections, 754 F.2d 841 (9th Cir.1985). Plaintiff therefore may not obtain relief under § 1983 for any infringement upon his request for furlough.[4]
Accordingly, plaintiff is not entitled to relief under § 1983 on any of the claims raised in this action. Defendants' Motion *1109 for Summary Judgment is GRANTED. Having so concluded, plaintiff's Cross-Motion for Partial Summary Judgment and defendants' Motion to Dismiss (Ct.Rec. 44) are DENIED. The complaint and claims therein are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED. The Clerk is directed to enter this Order and forward copies to plaintiff and counsel for defendants.
NOTES
[1] Defendants concede that the legal facilities at IRTC, although in existence, are quite limited.
[2] It appears that the proper venue for this action lay with the Western District because IRTC is located there and all defendants reside in that district. Defendants, however, never properly raised the issue and thus it is waived in accordance with Fed.R.Civ.P. 12(h).
[3] Plaintiff also asserts that he was subject to poor treatment and physical accomodation during the process of his transfer. Although these allegations might state a constitutional violation on another basis, they are not relevant to the denial of access claim.
[4] A similar analysis applies to any change in plaintiff's custody classification. See In re Dowell, supra. In regard to plaintiff's contention that his public safety factor was increased as a result of the transfer, Mr. Fort concedes this change did not affect his release date. Accordingly, he has failed to establish that any constitutional violation resulted from that change.
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654 S.W.2d 309 (1983)
Sheryl A. GRAY, Respondent,
v.
Lindell L. GRAY, Jr., Appellant.
No. 45969.
Missouri Court of Appeals, Eastern District, Division Three.
June 21, 1983.
*310 Donald E. Heck, Clayton, for appellant.
William E. Sorrell, Clayton, for respondent.
REINHARD, Judge.
Husband appeals provisions of dissolution decree regarding temporary child custody, distribution of property and attorney's fees. We affirm.
The basic facts are not in dispute. The parties were married for four years. Husband owned a house prior to marriage, which was encumbered by a deed of trust.
During the marriage, husband conveyed this real estate to himself and his wife as tenancy by the entirety. Wife worked as a clerk for the Federal Reserve; husband resigned his position at the Special School District prior to the hearing.
The parties have one child. At trial, however, husband admitted that he had had sexual relations with another woman while wife was pregnant and that during the marriage he impregnated the other woman. He further stated that although the other woman was still married, he lived in her house with their child.
The court filed findings of fact and conclusions of law. In its decree, the court awarded general custody of the two year old daughter to the wife. The husband was granted reasonable rights of visitation, as well as the right to temporary custody of the child on alternate weekends, alternate national holidays including Mother's and Father's Days, and for a period of two weeks during the child's summer vacation. The court further stated, "the Respondent [husband] [is] ordered not to have said child, during Respondent's periods of temporary custody, overnight in any habitation in which Respondent and any adult female to who Respondent is not married or related, are present." Husband challenges that portion of the custody provisions which prohibits overnight custody of his child when a woman not his wife is present.
The circumstances surrounding the custody decree in this case are remarkably similar to those of Bull v. Bull, 634 S.W.2d 228 (Mo.App.1982). There, husband was living with a woman not his wife. The court entered an order awarding permanent custody to the mother. Temporary custody by the husband was limited to times which prevented the child staying overnight in the home where the father lived with a woman not his wife. This court's holding in Bull is equally applicable in the present case:
At the time of the hearing, Stephen was age 11. Husband was living in a substantial home on the Lake of the Ozarks with his secretary. Although the *311 trial court made no specific finding, it is apparent the court refused to grant husband overnight custody of his son because a woman not his wife was residing in husband's home. Under these circumstances, we cannot second guess the trial court's determination this arrangement was in the best interest of the minor child.
634 S.W.2d at 229. Indeed, as we noted in Bull, the best interests of the child are of paramount concern to the court. 634 S.W.2d at 229; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Moreover, the trial court's judgment should not be disturbed unless the best interests of the child so demand. In re Marriage of Hallak, 559 S.W.2d 612, 613 (Mo.App.1977).
In the present case, the court did not name the woman who was the object of the order; however, the intent of the trial court's order is clear. To protect the child's best interests, the minor child of this marriage was not to stay overnight in a home with her father wherein he was with Connie D. and they were not married. The evidence clearly indicated that at the time of the hearing he was living with Connie D. in her home and that she was not, at that time, divorced from her husband. Under the circumstances, we do not find the trial court's order as to child custody to be an abuse of its discretion. The court acted in what it believed to be the child's best interests.
The second issue on appeal concerns the trial court's division of marital property. Husband's major complaint with the disposition of the property is that "the court abused its discretion in awarding an excessively large portion of the marital property to the petitioner ...." After hearing the evidence, the court awarded to the wife approximately $28,000.00 in marital property, of which $24,500.00 was the equity in the family home. Likewise, approximately $10,000.00 was awarded to husband. Based upon this computation, wife received approximately 74% of the marital property and husband 26%. Furthermore, wife contends that when you consider marital funds which husband expended (he claimed paid for marital debts) prior to trial, the disposition more closely approximates a 50/50 division.
Husband, however, contends that since he must repay his mother $6,000.00 for money advanced when he purchased the home prior to marriage, the disposition is 87.5% to the wife and 12.5% to the husband. The evidence revealed that when the son purchased the house he was 19 years of age and that his mother loaned $6,000.00 to him as a down payment. The bank was told this money was a gift. Husband offered into evidence a document which stated:
Note
January 20, 1973 $6,000.00
I have today borrowed the sum of Six
Thousand Dollars to use as a down payment
on my home at 1273 Nectar Drive,
Bellefontaine Neighbors, Missouri. This
note bears no interest, and is payable
only in the event that I sell my home.
S/Lindell L. Gray, Jr.
Based on this evidence, husband complains that the $6,000.00 debt to his mother should have been declared a lien against the house, and the property division appropriately adjusted.
We find no error in the court's failure to impress a lien based upon the evidence before it. With that in mind, we now consider whether there is merit to husband's complaint that the court erred in its distribution of the marital property. Section 452.330, RSMo.1978, provides that the court:
shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:
(1) The contributions of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(2) The value of the property set apart to each spouse;
(3) The economic circumstances of each spouse at the time the division of the property is to become effective, including *312 the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and
(4) The conduct of the parties during the marriage.
This court addressed the issue of property distribution in Givens v. Givens, 599 S.W.2d 204 (Mo.App.1980). Our findings in that case are equally applicable in the present matter:
The trial court has discretion in the division of marital property and a just division does not have to be equal, particularly where one party has engaged in misconduct. Arp v. Arp, 572 S.W.2d 232, 235 (Mo.App.1978). Among the factors to be considered by the court in distributing the marital property is the conduct in distributing the marital property is the conduct of the parties during the marriage. § 452.330.1(4), RSMo.1978. While marital misconduct may serve as a basis for the court in dividing the marital property, it "should not serve as a basis for ordering excessive maintenance against, or inadequate marital property to, the offending spouse." Burtscher v. Burtscher 563 S.W.2d 526, 527 (Mo.App.1978). Our review of the record here convinces us that the court did not abuse its discretion in awarding the marital home to wife. We believe the court's finding of sexual misconduct by husband was supported by the evidence. The wife testified that husband told her his "friend" was pregnant and he was not sure whether he was the father.
599 S.W.2d at 206.
Like Givens, here there is no dispute as to marital misconduct of the husband. He openly admits that during the marriage he fathered a child by the woman with whom he is presently living. The trial court could and apparently did consider this factor,[1] as well as the fact that husband made a greater contribution to the marital property. While the case awards a greater distribution of marital property to wife, under the circumstances of this case, we find no abuse of discretion in the disposition of such property.
Lastly, defendant contends that the court erred in ordering him to pay wife's attorney's fees when "he was essentially unemployed" and was without funds while wife was employed. We recognize that the granting of attorney's fees is within the discretion of the trial court. Apparently there is no dispute as to the amount of attorney's fees; only as to responsibility for payment. In fact, the court determined that the attorney's fees which it deemed reasonable exceeded the amount which was apportioned to be paid by the husband. We find no error in the allowance of the attorney's fees.
Judgment affirmed.
CRANDALL, P.J., and CRIST, J., concur.
NOTES
[1] In fact, the court specifically noted this evidence in its findings.
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654 S.W.2d 675 (1983)
Muriel HINSON, Plaintiff-Appellee,
v.
WAL-MART STORES, INC., Defendant-Appellant.
Supreme Court of Tennessee, at Nashville.
July 18, 1983.
Richard Thomas Matthews, Columbia, for plaintiff-appellee.
Walter W. Bussart, Lewisburg, for defendant-appellant.
OPINION
BROCK, Justice.
The trial judge awarded benefits to the plaintiff for total and permanent disability resulting from injuries which she received in an accident arising out of and in the course of her employment on July 26, 1980, when she fell from a ladder while attempting to procure some fabric for sale to a customer in the defendant's store. The defendant employer has appealed complaining *676 that the trial court erred in finding that there was any causal connection between the accident and a rheumatoid arthritic condition which the plaintiff has suffered in her hands since the accident and in finding that the extent of the plaintiff's permanent disability is total.
The plaintiff was employed as salesperson in the fabric department of the defendant department store. A customer desired to purchase some fabric which was stored on a shelf high above the plaintiff's head and out of her reach. She procured a ladder and while attempting to bring the fabric from the shelf down the ladder to her counter the plaintiff lost her balance and fell over backwards striking her hip and both hands on the floor. Her right femur, just below the hip joint, was fractured in the fall and was treated by surgical reduction of the fracture. It appears that her recovery from the fracture of the femur was quite satisfactory but that at the time it reached maximum recovery on March 30, 1981, according to Dr. Daniel, it left a residual permanent partial disability estimated at 20 per cent of the hip, or 16 per cent to the right leg or 8 per cent to the body as a whole.
The plaintiff, however, insists that the injuries and disability sustained by reason of her fall extended beyond the leg injury to her hands. She testified that she began to have pain in her hands for the first time on the second or third day following surgery for her hip and, indeed, Dr. Daniel testified that as of September 2, 1980, the plaintiff complained to him of discomfort in her hand.
It is established by the testimony of three physicians, Dr. Daniel, Dr. Fentress and Dr. Wiesman, that the plaintiff does indeed suffer from rheumatic arthritic disease which was described by one of the doctors as a complex collagen disease. Dr. Daniel testified that he could not relate the rheumatoid arthritis to the plaintiff's fall other than that the fall may have briefly aggravated the arthritic condition but would have no effect on the overall course of the arthritic disease. Dr. Vance Fentress testified, however, that the plaintiff's fall may have had some causal effect on the rheumatoid arthritis; that it certainly had an aggravating effect; and, that the physical trauma and subsequent emotional duress of the accident had an aggravating influence on the plaintiff's rheumatoid arthritic process that the accident could have exacerbated the rheumatoid arthritis. Dr. Fentress further testified that the rheumatoid arthritis condition is permanent. Dr. James Wiesman, Jr., testified that the plaintiff's hand problem "could be" related to the accident and that the accident "could have" exacerbated the rheumatoid arthritis.
The plaintiff testified that she had never had pain in her hand before the fall and that she had never had rheumatoid arthritis prior to her fall.
The trial court made the following specific finding:
"From the proof presented the court taken as a whole, and particularly from the medical evidence that the plaintiff's arthritic condition of her hands could have been aggravated and exacerbated by the plaintiff's physical and emotional trauma and anxiety sustained in the accident along with the plaintiff's own testimony which was corroborated by other testifying witnesses that she had had no previous arthritic trouble or symptoms prior to the accident, the court finds that the plaintiff has sustained her allegations by a preponderance of the evidence that there is a sufficient causal connection between the accident and the permanent arthritic condition of her hands to sustain the worker's compensation award to the plaintiff set forth herein."
We conclude that the evidence of the medical experts, hereinabove summarized, supports this finding of the trial court. This Court does not "reweigh the evidence; in fact, even if the evidence preponderates against the findings below, the decision will be upheld so long as any material evidence supports it." Davis v. Gulf Ins. Group, Tenn., 546 S.W.2d 583 (1977).
Moreover, it is within the discretion of the trial judge to conclude that the opinion *677 of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Combustion Engineering, Inc. v. Kennedy, Tenn., 562 S.W.2d 202 (1978).
Here, the trial judge has concluded that the testimony of Dr. Fentress and Dr. Wiesman is more persuasive than that of Dr. Daniel; this was his prerogative. A trial judge may properly predicate a worker's compensation award on medical testimony to the effect that the given incident "could be" the cause of plaintiff's injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury. P & L Const. Co., Inc. v. Lankford, Tenn., 559 S.W.2d 793 (1978); Cortrim Mfg. Co. v. Smith, Tenn., 570 S.W.2d 854 (1978). Under this rule the testimony of Drs. Fentress and Wiesman when coupled with that of the plaintiff, Mrs. Hinson, supports the finding of the trial court that the plaintiff's rheumatoid arthritic condition is causally related to the fall from the ladder. See also, Masters v. Industrial Garments Mfg. Co., Inc., Tenn., 595 S.W.2d 811 (1980).
We also find material evidence to sustain the finding of the trial court that the plaintiff is permanently and totally disabled by reason of her injury. In considering this issue it must be kept in mind that this Court makes a clear distinction in worker's compensation cases between anatomical impairment as determined by a physician and disability to work which results from such impairment. Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967). In Cameron this Court recognized that in determining what may constitute permanent and total disability many pertinent factors should be considered, including the skills, education and training of the employee as well as job opportunities and other factors bearing upon employability. In determining the sufficiency of the evidence to support a finding of disability under the act, once permanency and causation are established by medical testimony, as has been done in the instant case, the extent of such disability may be determined from lay testimony and from other evidence as well as from medical evidence. Kellwood Co. v. Gibson, Tenn., 581 S.W.2d 645 (1979). In such cases the trial judge is not bound to accept physicians' opinions of the extent of the employee's disability but is entitled to determine the extent of disability from all of the evidence, both expert and non-expert. Trane Co. v. Morrison, Tenn., 566 S.W.2d 849 (1978); Employers Ins. Co. of Alabama v. Health, Tenn., 536 S.W.2d 341 (1976).
In the instant case there is medical evidence that the plaintiff suffers a permanent disability because of the injury to her femur and that the rheumatoid arthritic condition from which she suffers is likewise permanent and disabling at least to her hands. There is no dispute that the disability arising from the leg injury was caused by the industrial accident which the plaintiff sustained and, although the three physicians who testified were not unanimous in their opinion respecting a causal relation between the accident and the arthritic condition, Drs. Fentress and Wiesman have testified that the accident did have or could have had an aggravating or activating effect upon the rheumatoid arthritic process suffered by the plaintiff causing it to become symptomatic and disabling. Moreover, the plaintiff herself has testified that the combined effect of the injuries to her leg and hands is such that she is no longer able to stand for long periods of time without pain, that she has difficulty sitting and is unable to use scissors or to otherwise use her hands as she did prior to the accident and, in sum, that she is unable to perform the duties of her employment. Her only work experience has been that of a sales clerk. The experienced trial judge found from all the testimony and from the "visual observations by the court of the plaintiff, ..." that the plaintiff had sustained a permanent and total disability within the meaning of the Worker's Compensation Act. We conclude that the evidence supports that finding and, accordingly, affirm it.
*678 The decree of the trial court is affirmed and costs incurred upon appeal are taxed against the appellant and surety.
FONES, C.J., and COOPER, HARBISON and DROWOTA, JJ., concur.
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49 Md. App. 696 (1981)
435 A.2d 484
DAVID ROBERT PROCTOR, A/K/A JOHN STANLEY WILLIAMS, A/K/A ROBERT SYLVESTER PROCTOR, JR. AND RONALD STANLEY PROCTOR
v.
STATE OF MARYLAND.
No. 21, September Term, 1981.
Court of Special Appeals of Maryland.
Decided October 8, 1981.
The cause was submitted on briefs to GILBERT, C.J., and MORTON and THOMPSON, JJ.
*697 Submitted by Alan H. Murrell, Public Defender, and Victoria S. Keating, Assistant Public Defender, for appellants.
Submitted by Stephen H. Sachs, Attorney General, Patricia E. McDonald, Assistant Attorney General, Andrew L. Sonner, State's Attorney for Montgomery County, and Jimmy L. Hill, Assistant State's Attorney for Montgomery County, for appellee.
THOMPSON, J., delivered the opinion of the Court.
David Robert Proctor and Ronald Stanley Proctor, the appellants, were tried by jury in the Circuit Court for Montgomery County and convicted of theft. Subsequently, David Robert Proctor was sentenced to a term of five years' imprisonment and Ronald Stanley Proctor was sentenced to a term of three years' imprisonment.
The appellants present three questions:
1. Whether the evidence was sufficient to sustain the convictions;
2. Whether the trial court erred in allowing the State's witness, Rupert Curry, to testify as to the value of the stolen guns; and
3. Whether the evidence was sufficient to support the sentences imposed.
FACTS
Jerome Proctor testified for the state as part of a plea agreement. He stated that on March 11, 1980, he was outside his home with Roderick McKinney and Alonso Clayton, when he was approached by his brother, David Robert Proctor, who asked him to "run him over this girl's house." Jerome agreed and the four entered into a green Pontiac LeMans registered to a third brother, Ronald Proctor. Jerome testified that after driving a short while they encountered Ronald Proctor driving a white Ford Torino. The two cars pulled over and Robert proceeded to exit the green car and enter the white Torino with Ronald. The two *698 cars drove towards a residential area of Rockville and stopped in front of a single family home. Jerome stated that Robert, McKinney and Clayton went up to the house. A few minutes later McKinney and Clayton returned carrying some guns. The guns were placed in the back of the green car and the two cars left the area. On their way home both vehicles were stopped by the police.
Alonso Clayton also testified for the state as part of his plea agreement. His testimony was similar to Jerome's in that he placed himself, Jerome and McKinney in the green Pontiac and Robert and Ronald in the white Ford leading the way to Rockville. Clayton testified that the two cars parked in front of a single family home whereupon McKinney went to the door, knocked, and returned to the car stating that no one was home. According to Clayton, Jerome suggested that they leave but "Bobby [Robert] said since there was nobody in that home let's hit it." Robert then went up to the front door accompanied by Jerome and kicked it in. Clayton testified that he and McKinney followed Robert and Jerome into the house. McKinney and Robert went upstairs and Jerome and Clayton ran downstairs where they found a cabinet containing guns. The guns were seized and the four subsequently left the house. Clayton admitted that he had signed statements in which he averred that neither Robert nor Ronald Proctor had anything to do with the instant offenses but stated that they were not true. These statements were allegedly made at the instigation of Robert and Ronald who told him if he would sign it "they could beat this charge." Clayton stated that he had originally agreed to plead guilty but would not testify for the state, however, upon learning that he might only receive 18 months instead of the possible ten year sentence, he thought he "might as well go ahead and do it."
Jerome Schaffer testified that at approximately 2:00 p.m. on March 11, 1980, he was driving on Maryland Avenue when upon looking to the left he observed three individuals in the yard of a residence. One individual was carrying what appeared to be "three long guns ... one of which appeared to be a shotgun." The individual carrying the guns appeared to *699 be walking to a vehicle parked along the curb described as a "white over green or perhaps light green over a darker green" full-sized General Motors automobile, being either a Pontiac, Oldsmobile or a large Chevrolet. Schaffer drove past the house, turned around and drove past again. At some unspecified point he observed a second vehicle which was painted a white or off-white color. Schaffer was unable to recall where the white car was located in reference to the green. He then observed the three individuals enter the green car and drive away at a fast rate of speed. Schaffer looked toward the house and saw that the front door had been left open. He then observed a Montgomery County Police cruiser heading towards him. He signalled to the officer and told him that he believed there had been a housebreaking.
Officer Ronald Gabriel testified that he was the officer whom Schaffer had flagged down. From Schaffer and another individual at the scene, Gabriel received descriptions of the housebreaking suspects and the vehicles involved. After speaking with the two individuals, Gabriel went to the house in question and checked the front door. He found that it had been kicked in. He subsequently put out a bulletin based on the descriptions given.
Officer Edward P. Hickey testified that he was involved in the stop of the two cars. He stated that he had observed three black males in the green vehicle and two in the white vehicle and that prior to stopping the automobiles, the green vehicle had been in front.
Detective David Hutchinson testified that he had been called as an investigator in the case. From Ronald Proctor, the driver of one of the vehicles and from Jerome Proctor the driver of the other, Hutchinson obtained consent to search both cars. From the back of the green car a television, typewriter, jewelry box and five guns were seized. Additionally, Hutchinson testified that both cars were listed with the Department of Motor Vehicles as belonging to Ronald Proctor.
*700 Ronald Proctor testified stating that on the day in question, Robert, Jerome, Clayton and McKinney decided to visit some girls they had met the previous weekend. They took two separate cars; Jerome driving the green and Ronald driving the white. Ronald stated that on the way he stopped to get gas with Robert in the car, and the others left in the green car stating they would be back. Subsequently the green car returned and the driver signalled to follow them to the girls' house. The green car stopped in front of a house while Ronald turned his car around and parked. According to Ronald, by the time he had parked the car, the three were running out of the house with some guns. He stated that they did not put the guns in his car because he drove off before they had a chance.
Sufficiency of the Evidence
The incriminating evidence against appellants, Ronald and Robert Proctor, consists primarily of the testimony of two witnesses: Jerome Proctor, brother of the appellants, and Alonso Clayton. The two witnesses' testimony, while contradictory as to certain specificities, placed both appellants at the Maryland Avenue residence and showed both of them to be an integral part of the crime. It is clear, however, that an accused cannot be convicted upon the uncorroborated testimony of an accomplice.[1]Brown v. State, 281 Md. 241, 378 A.2d 1104 (1977). See also, Hillard v. State, 286 Md. 145, 158, 406 A.2d 415 (1979); Bennett v. State, 283 Md. 619, 392 A.2d 76 (1978); Bishop v. State, 39 Md. App. 384, 385 A.2d 1206, cert. denied, 283 Md. 729 (1978); Jeandell v. State, 34 Md. App. 108, 366 A.2d 79 (1976); Borza v. State, 25 Md. App. 391, 335 A.2d 142, cert. denied, 275 Md. 746 (1975). Thus, the issue is whether the state met its burden of introducing sufficient corroborative evidence to sustain the convictions.
*701 With respect to the degree of corroborative evidence the Court of Appeals observed in Brown v. State, supra, 281 Md. at 244:
"Not much in the way of evidence corroborative of the accomplice's testimony has been required by our cases. We have, however, consistently held the view that while the corroborative evidence need not be sufficient in itself to convict, it must relate to material facts tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself.... If with some degree of cogency the corroborative evidence tends to establish either of these matters, the trier of fact may credit the accomplice's testimony even with respect to matters as to which no corroboration was adduced.... That corroboration need not extend to every detail and indeed may even be circumstantial is also settled by our cases." (citations omitted).
Aside from the accomplice's testimony implicating the appellants, corroborative evidence has been adduced from the testimony of Jerome Schaffer, Officers Gabriel, Hickey and Hutchinson, and the appellant Ronald Proctor. First, Jerome Schaffer testified that he observed three individuals in the yard of a residence, one of whom appeared to be carrying rifles. Although his description of the vehicles involved was hazy, he was nevertheless able to note the existence of two cars; one being a "white over green or perhaps light green over a darker green" full sized General Motors automobile and the other being a white or off-white color. Upon their departure Schaffer observed that the front door of the residence had been left open. He thereupon flagged down Officer Gabriel and gave him a description of the individuals and the cars involved. Officer Gabriel testified that he put out a bulletin for a white car and a green car which had been seen in the area of the burglary. Officer Hickey testified that within minutes of the bulletin he stopped two vehicles meeting such description, arrested the *702 individuals and impounded the cars. The five individuals arrested were later identified as the two witnesses, Jerome Proctor and Alonso Clayton, the two appellants, Ronald and Robert Proctor, and Roderick McKinney. Finally, Ronald Proctor testified in his own defense. Corroborating evidence was adduced in that he admitted being at the scene of the Maryland Avenue burglary.
In Jeandell v. State, supra, 34 Md. App. at 110, this Court noted that "[i]t would be sufficient by way of corroboration for the State to show, by way of non-accomplice evidence that the appellant was in the company of the perpetrators of the crime in the general vicinity of the crime scene and at about the time when the crime occurred." See also, Ham, Lee, Bailey and Cole v. State, 7 Md. App. 474, 480-81, 256 A.2d 362 (1969), cert. denied, 256 Md. 745 (1970). Such fact was clearly demonstrated in the present case in that both appellants were arrested along with the accomplices minutes after the burglary occurred. This evidence, along with the observation of the vehicles by Jerome Schaffer and the admission by Ronald Proctor as to his association with the accomplices at the time of the burglary, provides sufficient corroboration of the accomplices' testimony under the standard established in Brown to support the conviction of both appellants, Ronald and Robert Proctor.
Testimony as to the Value of the Stolen Goods
The appellants contend that the trial court erred in allowing the State's witness, Rupert Curry, to testify as to the value of the stolen guns. Curry, the grandson of the deceased owner of the guns, testified that he was familiar with the guns in that he had taken care of them since his grandfather's death two years prior to this case. Additionally, he testified that he owned a gun similar to the stolen shotgun.[2] In Lamot v. State, 2 Md. App. 378, 383, 234 *703 A.2d 615 (1967), we noted: "One familiar with the value of property is competent to testify on this question." For the same reasons as set forth in Lamot, we find no error in the admission of Curry's testimony as to the value of the guns.
Sufficiency of the Evidence to Support Appellant Robert Proctor's Sentence
The appellant, Robert Proctor, contends that the evidence was insufficient to support his sentence in that no evidence was adduced as to the value of goods taken with respect to him. As previously indicated, Rupert Curry testified for the state regarding his familiarity with the guns in question as to his estimation of their value. During his testimony no objections were offered by either defense counsel until the following transaction occurred:
"Q. Have you ever had occasion to be the recipient of any offers to purchase those guns?
Mr. Hardcastle: Objection.
The Court: Do you have any, Mr. D'Erasmo and Mr. Hardcastle, have any real reservations about the fact that these guns had some value?
Mr. D'Erasmo: Mr. Hardcastle can speak for himself. I have no objection to the officer testifying as to value. Perhaps Mr. Hardcastle would have an objection I should have thought of.
The Court: Do you have an objection?
Mr. Hardcastle: Yes.
The Court: We'll let him testify as to your defendant, Mr. D'Erasmo, and you disregard it as to the other defendant. Go ahead."
No further evidence was adduced by the state establishing the value of the stolen guns. Thus, with respect to appellant Robert Proctor, the record contains no evidence as to the value of these items. The issue then becomes whether his conviction of the crime of theft can be sustained despite this void.
*704 The recently consolidated Maryland theft statute under which appellants were charged provides, in part:
"§ 342 Theft.
(a) Obtaining or exerting unauthorized control. A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and:
(1) Has the purpose of depriving the owner of the property; or ..." Md. Ann. Code, art. 27 § 342 (1957, 1976 Repl. Vol., 1980 Cum. Supp.).
Unlike the previous larceny statutes, see Md. Ann. Code (1957, 1976 Repl. Vol.) art. 27 § 340-343A, the newly enacted § 342 does not include among its elements a showing of value. The issue of value becomes relevant only with respect to the imposition of a penalty, in that, where the stolen items have been shown to have a value in excess of $300 the offense will be deemed a felony and the sentence imposed will be greater as opposed to where the worth is found to be less than $300 and the offense is viewed as a misdemeanor. See, § 342 (f). Thus, it appears that a defendant can be found guilty of theft without any showing of the value of the stolen property. However, where no evidence of the value of the goods has been adduced, the items must be deemed to have a worth less than $300 and as such, the defendant will be sentenced accordingly under the misdemeanor provisions of § 342 (f) (2).
That the legislature intended this result is further evidenced by viewing the new definitional section, § 340, in conjunction with § 342. As part of the definition of the word "value" the legislature has stated:
"(1)(4) When it cannot be determined if the value of the property or service is more or less than $300... its value shall be determined to be an amount less than $300."
*705 It appears that the state has satisfactorily demonstrated all of the elements of the crime of theft with respect to both appellants, but, there is no evidence of the value of the goods stolen with respect to appellant Robert Proctor. Thus, such goods will be deemed to have a value of less than $300. As such, we hold that the trial court erred in imposing the higher penalty upon appellant Robert Proctor. For this reason, we shall vacate the sentence as to this appellant, with instructions to the trial judge to impose a new sentence in accordance with the principles we have enunciated.
Sufficiency of the Evidence to Support Appellant Ronald Proctor's Sentence
Appellant Ronald Proctor contends that his sentence should be vacated if Robert Proctor's sentence is vacated on the basis of "fundamental fairness."
We find no relation between the sentence imposed upon the two appellants other than their involvement in the same offense. So called "fundamental fairness" does not require that a trial judge impose a lighter sentence on one criminal simply because another was able to have his penalty reduced because of a "technicality."
Judgment as to Ronald Proctor affirmed.
Sentence as to Robert Proctor vacated.
Case remanded for imposition of a proper sentence.
One half of the costs to be paid by Ronald Proctor.
One half of the costs not reallocated pursuant to Maryland Rule 1082 f.
NOTES
[1] The test of whether a witness is an accomplice is whether he could be convicted for the offense charged against the defendant, either as principal or accessory before the fact. Watson v. State, 208 Md. 210, 217, 117 A.2d 549 (1955); Bishop v. State, 39 Md. App. 384, 389-90, 385 A.2d 1206, cert. denied, 283 Md. 729 (1978).
[2] Curry estimated the value of the shotgun to be approximately $1200. According to Curry, the total value of the guns was approximately $2500. The basic question is whether the value of the stolen goods exceeded $300. Although Curry's ability to place a specific value on each of the guns is border line, it is obvious that the value of the guns exceeded $300.
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623 F. Supp. 472 (1985)
PGP MUSIC, Plaintiff,
v.
DAVRIC MAINE CORPORATION, Defendant.
Civ. No. 85-0276 P.
United States District Court, D. Maine.
December 6, 1985.
John W. Philbrick, Portland, Me., for plaintiff.
Richard E. Poulos, Portland, Me., for defendant.
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S DEMAND FOR A JURY TRIAL
GENE CARTER, District Judge.
In this action for copyright infringement, plaintiffs seek a permanent injunction and "such statutory damages as to the Court shall appear just, as specified in 17 U.S.C. § 504(c)(1)." Section 504(c) provides:
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $250 or more than $10,000, as the court considers just.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court, in its discretion may increase the award of statutory damages to a sum of not more than $50,000.
Defendant has demanded a jury trial and plaintiff, with this motion, has moved to strike the demand on the grounds that the relief sought, including the statutory damages,[1] is equitable.
In 1957, the Court of Appeals for the First Circuit decided that a claim for statutory damages under 17 U.S.C. § 101, the predecessor to the statute addressed here, was a claim invoking the equity jurisdiction of the Court. Chappell & Co., Inc. v. Palermo Cafe Co., 249 F.2d 77 (1st Cir. 1957). Courts outside this circuit have split on the issue, and there is a significant amount of learned discourse on each side. Compare, e.g., Glazier v. First Media Corp., 532 F. Supp. 63 (D.Del.1982) (statutory damages equitable) with Chappell & Co., Inc. v. Pumpernickel Pub, Inc., 79 F.R.D. 528 (D.Conn.1977) (statutory damages legal).
After considering the arguments on both sides, the Court is persuaded that the conclusion reached by the First Circuit Court of Appeals in 1957 is still correct. The *473 statute does not specifically answer the question whether a jury trial is permitted. As many courts have pointed out, however: "The very language of this section suggests equitable relief. The Court is to exercise its discretion in determining what is just." Rodgers v. Breckenridge Hotels Corp., 512 F. Supp. 1326, 1327 (E.D.Mo. 1981); Glazier, 532 F.Supp. at 65. The idea that the discretionary nature of the relief is an important factor finds some support in Curtis v. Loether, 415 U.S. 189, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974). In that case, the Supreme Court held that section 812 of Title VIII of the Fair Housing Act, providing for the award of actual damages and not more than $1,000 punitive damages, sets forth a legal remedy. The Court stated that it "need not, and [does] not, go so far as to say that any award of monetary relief must necessarily be `legal' relief." Id. at 194, 94 S.Ct. at 1008. It then went on to distinguish cases in which the Courts of Appeals had found the back pay remedy in Title VII cases to be equitable relief: "In Title VII cases, also, the courts have relied on the fact that the decision whether to award back pay is committed to the discretion of the trial judge. There is no comparable discretion here; if a plaintiff proves unlawful discrimination and actual damages, he is entitled to judgment for that amount." Id. at 197, 94 S.Ct. at 1010.
Section 504 has one provision allowing recovery of actual damages which is analogous to the legal damages found in Loether. Any statutory damage award under section 504(c), however, is a matter of judicial discretion. Glazier v. First Media Corp., 532 F.Supp. at 67. An award under section 504(c), therefore, is more analogous to the equitable remedy distinguished by the Court in Loether.
Despite the disagreement in the federal courts on this issue, this Court sees no reason to deviate from the course set by the First Circuit Court of Appeals long ago. When the complaint seeks injunctive relief and statutory damages, "the whole case before the district court [is] equitable in nature." Chappell & Co. v. Palermo Cafe Co., 249 F.2d at 79. There is, therefore, no right to a jury trial.
Accordingly, it is ORDERED that plaintiff's motion to strike defendant's demand for a jury trial is hereby GRANTED.
NOTES
[1] There is no dispute that plaintiff's request for an injunction does not entitle it to a jury trial.
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654 S.W.2d 172 (1983)
STATE of Missouri, Respondent,
v.
Kirtus Allen DEVALL, Appellant.
No. WD 33877.
Missouri Court of Appeals, Western District.
May 10, 1983.
Motion for Rehearing and/or Transfer to Overruled and Denied June 28, 1983.
Application to Transfer Denied August 16, 1983.
*173 L.R. Magee, Hines & Magee, Kansas City, for appellant.
Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P.J., and DIXON and NUGENT, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied June 28, 1983.
*174 CLARK, Presiding Judge.
Kirtus Allen Devall was convicted of manslaughter arising out of the death of another motorist in an automobile accident. He appeals the judgment of conviction and sentence of two years. Affirmed.
The criminal information in this case was filed following investigation of a vehicular collision which occurred shortly before midnight on February 7, 1981 on Missouri Highway 13 in Lafayette County. Appellant was the occupant and apparent driver of one of the cars and Charles Homfeld the driver of the other. There were no known witnesses to the accident apart from appellant and Homfeld who suffered fatal injuries in the collision. At the scene, the two cars were found to the east of the travelled roadway, the Homfeld car headed north and completely on the highway shoulder and appellant's car facing the opposite direction partially on the shoulder and partially on the pavement. It was surmised that the vehicles had met head-on.
The state adduced evidence of appellant's activities earlier in the evening at a tavern known as the Sportsman's Bar in Dover, Missouri. That location is north of the accident scene which is, in turn, north of appellant's then residence in Harrisonville. At the bar, appellant was observed by witnesses to be drinking heavily and in a rowdy and combative mood. The evidence covered a time period some two hours before the accident. Other evidence from a highway patrol officer who investigated the accident and a nurse at the hospital where appellant was taken for treatment of injuries described a strong odor of alcohol about appellant and his uncooperative attitude and inappropriate responses. The state's case was based on the contention that appellant was culpably negligent in operating his automobile while in a state of alcohol intoxication.
In his first point on this appeal, Devall asserts that the information on which he was charged and tried was insufficient and thus the trial court was without jurisdiction to render judgment and sentence. That information reads as follows:
"The Prosecuting Attorney of the County of Lafayette, State of Missouri, charges that the defendant, in violation of § 565.005, RSMo, committed the felony of manslaughter punishable upon conviction under § 565.031, RSMo in that defendant unlawfully killed Charles Homfeld by defendant's culpable negligence in operating an automobile on or about February 7, 1981, in the County of Lafayette, State of Missouri, thereby causing Charles Homfeld to die on February 19, 1981, in the County of Jackson, State of Missouri."
Defendant moved for dismissal of the charge after the jury was sworn and after opening statements were made and again sought a ruling on the sufficiency of the information before the case was submitted. The trial judge indicated some reservations but overruled the motion. The defects in the information were reasserted in the motion for new trial and are contended here to require that the judgment be reversed.
The statute under which Devall was charged § 565.005, RSMo 1978,[1] proscribes the killing of a human being by the act, procurement or culpable negligence of another, not otherwise statutorily declared to be murder or excusable or justifiable homicide. Culpable negligence means disregard of the consequences which may ensue from the act and indifference to the rights of others. State v. Manning, 612 S.W.2d 823 (Mo.App.1981).
Appellant contends the information quoted above was insufficient because it did not contain a plain, concise and definite statement of the essential facts constituting the offense charged. In particular, it is appellant's argument that the information does not apprise him of what acts, conduct or omissions are contended to have been culpably negligent and, thus, he was faced with *175 preparing to defend against unknown factual elements of the state's case.
A similar contention was made and rejected in State v. Beck, 449 S.W.2d 608 (Mo.1969), a case of almost identical facts. There, Beck's truck was proceeding south when it collided in the opposite traffic lane with a northbound vehicle in which the deceased was a passenger. Beck was shown to have been intoxicated and driving at high speed. The information charged Beck with culpable negligence in driving his vehicle, but included no facts such as the rate of speed, the direction of travel, the manner in which Beck was driving or even the specific location of the collision. The court summarily ruled the point against the defendant stating: "It is not essential that an information charging manslaughter by culpable negligence in the operation of a motor vehicle set out in detail the particulars of which such carelessness, recklessness and culpable negligence consist." State v. Beck, supra, at 611.
There is difficulty in reconciling the decision in the Beck case with the principle set out in State v. Kesterson, 403 S.W.2d 606 (Mo.1966) where it was said that if the statute creating the offense used generic terms and does not individuate the offense with such particularity as to notify the defendant of what he is to defend against, an information which follows the language of the statute is insufficient. The offense in Kesterson was stealing by means of deceit. The information charged the defendant with stealing by means of deceit from one Walker the sum of $2,564.00. It was there held that stealing by means of deceit is an offense defined in generic terms and an information charging this offense must recite the conduct constituting a theft by deceit. The opinion also pointed out that a defect of this nature is fatal and is not waived by failure of the accused to seek a bill of particulars.
The offense of manslaughter by culpable negligence as set out in § 565.005, RSMo 1978 is an offense described in generic terms and constitutes a general rather than an individuated charge when repeated in statutory language in an information even if accompanied by the detail of "operating an automobile." The similarity of the offense of theft by deceit in this respect is unmistakable. Under the rationale of Kesterson, therefore, it would seem that the information in manslaughter should also recite the conduct contended to be culpably negligent. In the present case, it is to be noted that appellant was not even alleged in the information to have operated his vehicle while in an intoxicated condition.
Despite the apparent conflict in the cases, this court is bound to follow the precedent of State v. Beck which cites a number of prior Missouri decisions to the same effect. Because the cases all involve vehicular homicides, it can only be concluded that automobile cases constitute an exception to the general rule.
In his second point, appellant argues that the evidence presented was insufficient to take the case to the jury and that his motion for acquittal should have been sustained. We review the evidence in this context by accepting as true all evidence and inferences supportive of the verdict and recognizing that our function is not to weigh the evidence but to determine whether there was sufficient evidence from which reasonable persons could have found appellant guilty as charged. State v. Barber, 635 S.W.2d 342 (Mo.1982).
As stated above, there was evidence indicating appellant's intoxicated condition both before and after the collision. There was also testimony that appellant executed a reckless maneuver with his automobile about two hours earlier. While no one witnessed the collision and testified to the event, the directions in which the automobiles were facing were consistent with the assumption that appellant was southbound headed toward his home in Harrisonville and Homfeld was northbound going toward Lexington where he lived. The highway patrol officer testified there were no scuff or skid marks, thereby eliminating the likelihood the vehicles had been deflected significantly from their positions at impact.
*176 The absence of skid marks is also suggestive of the conclusion that appellant veered into the oncoming lane of traffic and that Homfeld moved onto the shoulder in a futile attempt to escape. Also of telling effect was appellant's inquiry to the officer at the scene indicating he did not realize a collision had occurred.
Despite the lack of particularity in the information, the evidence was sufficient to persuade reasonable persons that appellant was intoxicated while operating his automobile on the night in question, that he was not in control of the vehicle but permitted the car to cross into the approaching traffic lane and that he struck the decedent's car head-on causing the injuries from which Homfeld later died. A number of reported cases involve very similar casualties with comparable proof at variance with the present case only in the details. The evidence in each has been held to be sufficient. State v. Brown, 637 S.W.2d 395 (Mo. App.1982); State v. Kays, 492 S.W.2d 752 (Mo.1973). The evidence here was also sufficient to show culpable negligence.
In a third point, appellant asserts the trial court erred in giving the jury the circumstantial evidence instruction, MAI-CR2d 3.42. The point is based on a contention that in the absence of any direct evidence showing how the collision occurred, the jury should not have been permitted to speculate how the vehicles reached their position after impact or before. Appellant argues that without testimony even showing his automobile was in motion before impact, the instruction gave a roving commission to the jury to engage in speculation and conjecture and to ignore the presumption of innocence.
The point is based on the faulty premise that a conviction could not be had in this case if the verdict depended on circumstantial proof. To the contrary, a submissible case may rest purely upon circumstantial evidence provided the facts and circumstances are consistent with each other and with the hypothesis of guilt and inconsistent with any reasonable hypothesis of innocence. State v. McGowan, 636 S.W.2d 354, 356 (Mo.App.1982). Even if the evidence is in part direct and in part circumstantial, the circumstantial evidence instruction may be given although it is not required. State v. Walls, 597 S.W.2d 868, 870 (Mo.App.1980).
It is unnecessary here to decide whether appellant's conviction depended on circumstantial evidence in whole or in part. The instruction is precautionary for the benefit of the accused and serves to limit the range of speculation in which jurors may engage. Appellant suffered no prejudice but was benefited by the instruction and is in no position to complain.
In a final point, appellant contends, without citation of any authority, that proof of his conduct and appearance at the Sportsmen's Inn two hours before the accident was inadmissible because those events were outside the scope of the information. The point would seem to depend on a requirement for particularity in the information, a contention discussed in the earlier portion of this opinion. In view of the disposition of the point related to the content of the information, this last point must also fail.
The judgment of conviction and sentence are affirmed.
All concur.
NOTES
[1] Section 565.005 was amended by Laws 1982, S.B. 513 to exclude the crime of vehicular manslaughter. This new offense committed by the accused while intoxicated or under the influence of drugs is denominated a Class C felony and is set out in § 577.005 Laws of Missouri 1982, S.B. 513.
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654 S.W.2d 948 (1983)
In the ESTATE of Robert A. SEABAUGH, Deceased,
Jacqueline Kay Seabaugh ARSENEAU, Appellant,
v.
Winford C. BROWN, Personal Representative, and Ethel Taylor, Respondents.
No. 12669.
Missouri Court of Appeals, Southern District, Division Three.
July 8, 1983.
*949 H. Morley Swingle, Spradling & Spradling, Cape Girardeau, for appellant.
Donald Rhodes, Bloomfield, for respondent Brown. Gary A. Kamp, Marble Hill, for respondent Taylor.
CROW, Presiding Judge.
This is an appeal from an order of the Probate Division of the Circuit Court of Bollinger County ("the probate division") denying an application for letters of administration by a putative daughter of a decedent, denying a like application by a sister of the decedent, and directing that letters be issued to the public administrator.
Robert A. Seabaugh ("Robert") died December 30, 1981, at age 65. On January 20, 1982, Ethel Taylor ("Ethel") filed a petition in the probate division to require administration of Robert's estate. § 473.020, RSMo 1978, as amended by Laws 1980, p. 455. Ethel's petition alleges Robert died intestate and that she, being his sister, is entitled to administer, as are two other sisters and a brother, the four being Robert's "lawful heirs at law." § 473.110.2, RSMo 1978, as amended by Laws 1980, p. 459.
On January 28, 1982, appellant ("Jacqueline") filed an application for letters of administration in the probate division, alleging she is Robert's daughter, and listing no other heirs. In a brief accompanying her application, Jacqueline states her mother ("Maxine") married Robert September 30, 1943, that Jacqueline was born June 24, 1945, and that Maxine and Robert were divorced October 24, 1947. Jacqueline supplied the probate division a copy of her "birth certificate" and copies of certain documents from the court records of the divorce case, including the decree as shown in a judgment book. Jacqueline asserts her status as Robert's daughter is res judicata by reason of the divorce decree, and that Robert's siblings are collaterally estopped from claiming Jacqueline is not Robert's child.
On February 16, 1982, Ethel filed a brief in the probate division, denying that Jacqueline is Robert's child and asserting that Jacqueline was not adjudicated to be so in the divorce case.
On March 3, 1982, the judge of the probate division entered an "Order Directing Issuance of Letters." The order states "that there has been no evidentiary hearing and no determination of heirship proceeding nor other litigation in which an adjudication has been made as to who the heirs of Robert A. Seabaugh are and, hence, who is entitled to the issuance of Letters of Administration." The order continues, "The Court, in entering this order, makes no finding, determination or adjudication as to the heirship of Robert A. Seabaugh, deceased." The order further provides, "The Court does hereby find, order and adjudge that the divorce proceeding ... and the judgment entered therein, does not make res judicata the issue of the parenty [sic] of Jacqueline K. Seabaugh Arseneau; and the Court finds that the issue of whether or not Jacqueline K. Arseneau was the daughter of Robert A. Seabaugh was not adjudicated in the aforementioned case ...." The order declares that by reason thereof, Robert's "heirs" are not collaterally estopped from challenging the allegation that Jacqueline is Robert's child. The order contains a finding that except for Ethel, Robert's siblings have not applied for letters of administration, and an additional finding that Jacqueline is not acquainted with the estate or any of Robert's assets "inasmuch as she did not associate with him prior to his death and is a nonresident of this state."[1]
Having set out these findings and others, the order declares that neither Jacqueline *950 nor Ethel is competent and suitable to serve as personal representative, and that letters of administration shall issue to the public administrator of Bollinger County ("Brown") upon his application.
On March 5, 1982, Brown made application, and letters were issued to him the same day.[2]
Jacqueline's notice of appeal states she appeals from the Order Directing Issuance of Letters "in which the Court finds, orders, and adjudges that the heirs of Robert A. Seabaugh are not collaterally estopped from challenging the allegation that Jacqueline Kay Seabaugh Arseneau is the child of Robert A. Seabaugh, entered in this action on the 3rd day of March, 1982."
Ethel did not appeal.
Brown filed a motion in this Court to dismiss the appeal, the basis of the motion, as we understand it, being that the order of March 3, 1982, is not final for purpose of appeal because it does not dispose of all issues between all parties. Specifically, Brown's motion states that the probate division determined it did not have jurisdiction to determine whether Jacqueline is Robert's daughter.[3] Brown's motion adds that until "a proper action is filed by an interested party" and a final judgment is entered on the paternity issue, there is no appealable order.
Brown's motion was taken with the case.
We hold the probate division's order is not appealable, but for different reasons than those asserted by Brown.
Historically, Missouri has allowed no appeal from an order granting, or denying, an application for letters of administration. Maus, Probate Law and Practice (3 Mo. Prac.Series) § 565 (1960). The rule originated in State ex rel. Grover v. Fowler, 108 Mo. 465, 18 S.W. 968 (banc 1891). There, a daughter and a son applied separately for letters of administration on the estate of their deceased mother. The probate court[4] heard both applications simultaneously, denied the daughter's application, and issued letters to the son. The daughter appealed[5] and also commenced an original proceeding in prohibition in the Supreme Court to prevent her brother from acting as administrator and to prevent the probate judge from recognizing him. Then (as now) there was a statute listing the types of probate court orders from which an appeal was allowed.[6]*951 One type was "all orders revoking letters testamentary or of administration." Orders granting or denying letters of administration were not listed. Following the list (14 in all) was a provision allowing an appeal "in all other cases where there shall be a final decision of any matter arising under the provisions of this chapter." The Supreme Court stated that if appeal lay from an order appointing an administrator, it must be by force of this latter provision. Observing that the legislature provided specifically for an appeal from an order revoking letters, but made no mention of an appeal from an order appointing an administrator, the Supreme Court held this raised a strong inference that it was not the intention to allow an appeal in the latter case. The Supreme Court held that where there are competing applications by persons equally entitled to administer, the decision as to whom to appoint is left to the judgment and discretion of the probate court, not reviewable by appeal. If one applicant has statutory priority over others, the probate court is required to follow the statute, and if the probate court disregards the priority, the aggrieved applicant can enforce his priority by mandamus. The Supreme Court also noted the absence of a statute authorizing appointment of an administrator pending an appeal in a contest over whom should be appointed, and recognized that holding administration in abeyance during an appeal would be disastrous to many estates. Finding no authority for the appeal, the Supreme Court denied the writ.
After Grover, the task of identifying appealable and non-appealable probate court orders proved troublesome, and the holdings were not always consistent or easily reconciled.
In State ex rel. Adamson v. Collier, 62 Mo.App. 38 (1895), three persons were appointed administrators of a decedent's estate. Thereafter, a woman claiming to be the decedent's widow applied for letters of administration, but the probate court took no action on her application. A few weeks later she filed a petition for removal of the administrators, coupled with a request that she be appointed. The probate court, after a hearing, denied the petition and the woman filed an affidavit and bond for appeal to the circuit court. The probate court denied the appeal, and the woman obtained an alternative writ of mandamus from the circuit court. After hearing, the circuit court denied a peremptory writ, and the woman appealed. The St. Louis Court of Appeals reversed and remanded with directions to award a peremptory writ compelling the probate court to allow the appeal.
In Burge v. Burge, 94 Mo.App. 15, 67 S.W. 703 (1902), one of two executors named in the decedent's will died and the other resigned. Letters of administration with will annexed were issued to a son of the decedent. Later, a woman claiming to be the decedent's widow applied for letters, asserting priority to administer. The probate court revoked the son's letters and issued letters to the woman. The son appealed to the circuit court, and that court, deciding the issue anew,[7] denied the woman's application. She appealed to the Kansas City Court of Appeals. That court, citing Adamson, held that where one claims the statutory right to administer, and the probate court denies the claim, the claimant may appeal. The Court of Appeals said Grover held only that an appeal did not lie from an order appointing an administrator, a different order than the one in Burge. The Court of Appeals considered the appeal on its merits, and affirmed the circuit court.
Grover was held controlling in Looney v. Browning, 112 Mo.App. 195, 86 S.W. 564 *952 (1905). There, two competing applications were made for appointment as curator of the estate of a minor child. The unsuccessful applicant appealed from the probate court order appointing his rival. The circuit court dismissed the appeal, and the St. Louis Court of Appeals affirmed on the basis that the statute pertaining to curators allowed appeals from any final order or judgment of the probate court with the same effect and in the same manner as appeals were allowed in cases of administration of decedents' estates. Noting that Grover held no appeal lay from an order appointing an administrator, and observing that there was no statute authorizing the appointment of a curator pending appeal, the Court of Appeals held the order non-appealable.
In State ex rel. Pinger v. Reynolds, 121 Mo.App. 699, 97 S.W. 650 (1906), the Kansas City Court of Appeals held mandamus lay in the circuit court to compel the probate court to allow an appeal from its order denying an application by two minor children to (a) remove the public administrator as curator of their estates, and (b) appoint an individual chosen by them (they being over age 14 and entitled to make such choice). The public administrator had been appointed simultaneously with the probate court's rejection of the children's choice. The Court of Appeals, relying on Burge, held the probate court order appealable, characterizing it as an adverse order made on a claim of right, appealable under a clause allowing appeal from "any final order or judgment of the probate court" in like manner and with the same effect as appeals were allowed in cases of administration of decedents' estates. The Court of Appeals declared its holding was in harmony with Grover.
In Flick v. Schenk, 212 Mo. 275, 110 S.W. 1074 (1908), a widow began administration of her deceased husband's estate, but died, and a son applied for appointment as administrator de bonus non. Three other heirs objected, and the probate court appointed the public administrator. The son appealed to the circuit court, which affirmed the probate court. The son then appealed to the St. Louis Court of Appeals, which dismissed the appeal on the authority of Grover, but deemed its holding to be in conflict with that of the Kansas City Court of Appeals in Burge, and certified the cause to the Supreme Court.[8] The son attempted to distinguish Grover on the ground that the appeal there was from an order appointing an administrator, whereas his appeal was from an order refusing to appoint him administrator. The Supreme Court held the distinction too attenuated to be of practical application. The Supreme Court affirmed the St. Louis Court of Appeals' dismissal of the appeal, observing that Grover was decided in 1891 and the legislature had not since changed the statute.[9] The Supreme Court found no conflict between Grover and Burge, noting that in Burge the appeal was from the order revoking the letters issued to the son, and that § 278, RSMo 1899, expressly allowed an appeal from "all orders revoking letters testamentary or of administration." This appears to be a firmer basis for the holding in Burge than that given by the Court of Appeals in the Burge opinion. The Supreme Court declared that the language in Burge indicating that where the right to administer is denied by the probate court, the claimant may appeal (for which Burge had cited Adamson as authority) found no support in Grover. 110 S.W. at 1075.
In re Brinckwirth's Estate, 268 Mo. 86, 186 S.W. 1048 (1916), involved an application to remove the public administrator as curator of the estates of three minors. The application was made by two uncles, who sought appointment as guardians of the persons of the minors and curators of their estates. The probate court denied the application and the uncles appealed to the circuit court, which affirmed the probate *953 court. The uncles appealed to the Supreme Court. The public administrator argued the order was non-appealable, citing Grover. The Supreme Court disagreed, pointing out that the statute on which Grover was based was carried forward as § 289, RSMo 1909, and provided that appeals from the probate court could be taken "in all other cases where there shall be a decision of any matter arising under the provisions of articles 1 to 13." 186 S.W. at 1050. Those articles did not include the article relating to guardians and curators of minors, which was article 17. The statute concerning appeals under article 17 allowed an appeal "from any final order or judgment of the probate court under this article," in like manner and with the same effect as appeals were allowed in cases of administration of decedents' estates. The Supreme Court held that the reference to cases of decedents' estates prescribed only the "practice and effect" of the appeal, and not the class of orders from which appeal was allowed. Holding the order a final order, the Supreme Court considered the appeal on its merits and reversed the circuit court. The Supreme Court stated it still adhered to Grover and Flick, but those cases did not apply. The Supreme Court did not mention Looney, but cited Pinger with approval.
In Ex parte Smith, 197 Mo.App. 200, 193 S.W. 288 (1917), the St. Louis Court of Appeals, citing Brinckwirth's Estate, overruled its holding in Looney. In Smith, the mother of a young child died and the child's maternal grandmother applied for appointment as guardian. The probate court found the child's father unfit, and appointed the grandmother. The father appealed. The Court of Appeals held the order appealable, and, in addition, that inasmuch as the father had posted an appeal bond, the force and effect of the order was suspended, leaving the cause pending for trial de novo in circuit court.
After Brinckwirth's Estate and Smith, we find no Missouri case holding that an order granting or denying an application for appointment as guardian of the person of a minor, or curator of his estate, is not appealable.[10] Indeed, State ex rel. Pope v. Lisle, 469 S.W.2d 841 (Mo.App.1971), went a step beyond Brinckwirth's Estate and Smith. In Pope, the probate court denied a mother's application to be appointed guardian of her minor daughter's estate, finding the mother unfit. The probate court appointed the public administrator, and the mother petitioned the circuit court for a writ of mandamus to direct the probate court to set aside the appointment of the public administrator and to appoint her. The circuit court issued an alternative writ, but ultimately dismissed it with prejudice, and the mother appealed. The Court of Appeals, citing Smith, affirmed the circuit court, holding that the remedy of appeal was available under §§ 472.160.1(15),[11] 472.200[12] and 478.070(4),[13] RSMo 1969, therefore mandamus did not lie.
*954 In three more recent cases, appealability of an order appointing a guardian was not even questioned. Roots v. Reid, 555 S.W.2d 54 (Mo.App.1977); Matter of Tepen, 599 S.W.2d 533 (Mo.App.1980); Hawthorne v. Patterson, 652 S.W.2d 252 (Mo.App.1983). Roots was an appeal by a nephew from a probate court order denying his application to be appointed guardian of the person and estate of his incompetent aunt and appointing the public administrator. Tepen was an appeal by a wife from an order of the probate division of the circuit court denying her application for appointment as guardian of the person and estate of her incompetent husband and appointing another. Hawthorne was an appeal by the father of two minor children from an order of the probate division of the circuit court appointing the children's maternal grandmother guardian of their persons and estates.
There has thus been a general retreat from Grover, and its offspring Looney, so far as appeals from orders granting or denying applications for letters of guardianship are concerned. No such departure has occurred, however, regarding orders granting or denying applications for letters of administration in decedents' estates.
In Marshall v. Shoemaker's Estate, 164 Mo.App. 429, 144 S.W. 1120 (1912), the St. Louis Court of Appeals, citing Grover and Flick, held that an administrator appointed by the probate court in vacation could not appeal from the same court's order at the ensuing term rejecting his appointment and appointing the public administrator. The appointment in vacation was only temporary, subject to confirmation or rejection at the next term, and when rejected, the right to administer ceased.
In Lucitt v. Toohey's Estate, 338 Mo. 343, 89 S.W.2d 662 (1935), the Supreme Court, citing Grover, held no appeal lay from a probate court order appointing the public administrator as administrator of a decedent's estate. 89 S.W.2d at 664[4].
In Stobie v. Stobie, 183 S.W.2d 609 (Mo. App.1944), the decedent's brother sought letters testamentary as successor executor. The probate court denied the application and appointed the public administrator.
The brother appealed to the circuit court, which reached the same result. The Court of Appeals, citing Flick and Lucitt, held the order of the probate court denying the brother's petition non-appealable, thus the circuit court acquired no jurisdiction. The judgment of the circuit court was reversed and remanded with directions to dismiss the brother's appeal. Stobie appears to be the most recent case in point.
If Grover, Flick, Marshall, Lucitt and Stobie compel dismissal of Jacqueline's appeal, one may ask what remedy, if any, an aggrieved party has in a case like this. The answer, according to Grover, is mandamus, but cases since Grover in which aggrieved parties have resorted to mandamus have reached diverse results.
In State ex rel. Abercrombie v. Holtcamp, 267 Mo. 412, 185 S.W. 201 (1916), the decedent, domiciled in Ohio, left a will naming the relator as executor. Relator resigned as executor in Ohio, then later, after ancillary administration had begun in Missouri, sought letters in Missouri. The probate court found that relator had no absolute right to qualify because of his earlier renunciation. The probate court appointed another as administrator with will annexed. Relator sought mandamus in the circuit court to compel the probate court to permit him to qualify as executor, and to revoke the appointment of the administrator w.w.a. The circuit court granted a peremptory writ. On appeal, the Supreme Court held that the probate court was required to determine the legal effect of the resignation in Ohio, and whether this constituted a resignation in Missouri, a decision that required the exercise of judicial discretion. Holding that the exercise of discretion cannot be controlled by mandamus, the Supreme Court reversed the circuit court and directed that the writ be quashed. The Supreme Court said that had there been nothing to preclude relator from asserting his original right to letters, mandamus would have been the proper remedy.
A similar result was reached in State ex rel. Thompson v. Nortoni, 269 Mo. 563, 191 S.W. 429 (banc 1916). There, a widow applied *955 for letters of administration on the estate of her deceased husband. He and she had signed an antenuptial agreement in which she agreed to accept a stipulated annual sum in lieu of all marital rights and relinquished all interest in her husband's estate. The probate court found this constituted a waiver of the right to administer, denied the widow's application and appointed the public administrator. The widow sought mandamus in the St. Louis Court of Appeals. That Court granted the writ and directed the probate court to vacate the order appointing the public administrator, and to appoint the widow as administratrix. The Supreme Court granted certiorari. Distinguishing Grover from Abercrombie, the Supreme Court held it was for the probate court to determine the question of waiver, and not for the Court of Appeals to determine that question in a mandamus proceeding. Noting that some other probate judge might have rendered a different judgment, the Supreme Court held mandamus does not lie if a question arises which requires judicial determination. The Supreme Court said, "It may be unfortunate that the statute provides for no appeal from the probate court in such cases, but the remedy is with the lawmakers, and not with the courts." 191 S.W. at 432.
An applicant for letters of administration de bonis non successfully used mandamus in State ex rel. Riesmeyer v. Holtcamp, 273 Mo. 124, 200 S.W. 294 (banc 1917). There, the decedent's next of kin were a brother, a sister, and several nieces and nephews. The sister waived her right to letters of administration, asking that letters be issued to the brother. He was appointed, but died before completing administration, and the public administrator took charge of the estate. The sister thereupon filed an application for letters of administration de bonis non, together with a motion to remove the public administrator. The probate court denied relief and the sister sought mandamus in the Supreme Court. Holding that the power of a supervising court to compel a probate judge to appoint an administrator in accordance with statutory priority is "too well settled for controversy," the Supreme Court made peremptory its writ ordering the probate judge to issue letters to the sister. The Supreme Court held her waiver affected only her original right to be appointed administratrix, and not her right to be appointed administratrix de bonis non after the first administrator's death. The probate court was therefore not required to pass upon any waiver or renunciation, and no question of judicial discretion was presented.
In State ex rel. Wilson v. Martin, 223 Mo.App. 1176, 26 S.W.2d 834 (1930), a brother of the decedent sought mandamus to compel the probate court to appoint him administrator. The St. Louis Court of Appeals acknowledged that mandamus lay to compel the probate court to perform a ministerial duty, citing Grover and Flick, but held mandamus did not lie when the action of the probate court required the exercise of judicial discretion, citing Thompson. Noting that the brother had been found unfit by the probate court, and finding nothing to indicate that the probate court's discretion was exercised arbitrarily, the Court of Appeals affirmed the circuit court's denial of relief.
In State ex rel. Fansher v. Guinotte, 227 Mo.App. 902, 58 S.W.2d 1005 (1933), mandamus was held the proper remedy for the decedent's granddaughter who sought appointment as administratrix with will annexed. The probate court appointed the granddaughter co-administrator with a nonrelative. The Court of Appeals held the granddaughter was entitled to priority, and to be appointed alone, unless the probate court found she was not competent and suitable. Having appointed her co-administrator, the probate court was deemed to have found her suitable, and was without authority to appoint a co-administrator. A peremptory writ was issued. The Court of Appeals rejected the argument that the granddaughter's proper remedy was appeal. 58 S.W.2d at 1009.
Mandamus has continued to be the remedy employed by those who were successful in obtaining relief from adverse rulings by probate courts on applications for letters in decedents' estates. State ex rel. Gregory v. Henderson, 230 Mo.App. 1, 88 S.W.2d 893 *956 (1935); State ex rel. Couch v. Kelso, 217 S.W.2d 596 (Mo.App.1949); State ex rel. North St. Louis Trust Co. v. Stahlhuth, 362 Mo. 67, 239 S.W.2d 515 (banc 1951). In Couch, the probate court, after a hearing, denied an application for letters of administration by the decedent's first cousin, finding him incompetent and unsuitable, and appointed the public administrator. The cousin obtained a writ of mandamus from the circuit court ordering the probate court to cancel the public administrator's appointment and to appoint the cousin. On appeal of the mandamus judgment, the Court of Appeals observed that no appeal lay from the action of the probate court in refusing to appoint the cousin, and that mandamus is a proper remedy to compel the probate court to appoint a person as administrator where the facts undoubtedly show his right to appointment. 217 S.W.2d at 599. The Court of Appeals noted the cousin was entitled to appointment if competent and suitable, and that the probate court's finding against the cousin on that issue was not only without any evidence whatever to support it, but was contrary to all the evidence on the issue. The Court of Appeals held the probate court's refusal to appoint the cousin was an arbitrary exercise of power and an abuse of discretion. Id. 217 S.W.2d at 601. The Court of Appeals rejected the argument that mandamus does not lie to regulate the probate court in the exercise of judicial discretion, evidently on the basis that mandamus lies if discretion is abused. The circuit court's judgment was affirmed.
The most recent mandamus case appears to be State ex rel. Lillard v. Tompkins, 262 S.W.2d 316 (Mo.App.1953). There, a decedent's half niece petitioned the circuit court to compel the probate court to revoke the appointment of a first cousin of the decedent as administrator, and to appoint the half niece. The circuit court denied relief. While the cause was under submission to the Court of Appeals, the first cousin made final settlement and resigned as administrator, thus rendering that aspect of the cause moot. The Court of Appeals noted that inasmuch as there was no present administrator, and the half niece was the sole resident distributee, she was entitled to be appointed unless found by the probate court to be incompetent and unsuitable. That issue was not before the probate court in the earlier proceedings, and thus not before the circuit court or the Court of Appeals. The judgment of the circuit court was affirmed.
It thus appears that since Grover, no one has successfully appealed in Missouri from a probate court order granting or denying letters of administration in a decedent's estate,[14] and that everyone who has obtained relief from such an order has utilized mandamus. With the case law in this posture, the only remaining question is whether the changes that occurred January 2, 1979, stripped the pertinent cases of their precedential *957 value. On that date probate courts ceased to exist, and matters over which they had exercised original jurisdiction were placed under the original jurisdiction of the probate division of the circuit court.[15] Appeals in such matters, which until then had been taken from the probate court to the circuit court, have, since that date, been taken directly to the appropriate appellate court.[16]
The right of appeal is statutory. Without underlying statutory authority there is no right to an appeal. United Labor Committee, Inc. v. Ashcroft, 572 S.W.2d 446, 447[1] (Mo.banc 1978). The statute pertinent to Jacqueline's appeal is § 472.160, RSMo 1978, as amended by Laws 1980, p. 452.[17] This statute is remarkably similar to the statute under which Grover was decided,[18] and, like the statute in Grover, contains no provision authorizing an appeal from an order granting or denying letters testamentary or of administration in a decedent's estate. The two statutes differ in certain respects, but none of the differences affects the appealability of an order like the one here. The only provision that could arguably permit Jacqueline's appeal paragraph 14 of § 472.160.1 is virtually identical with the statutory provision in Grover that was held not to authorize an appeal there.
We are bound to follow the last controlling opinion of the Supreme Court of Missouri. Mo. Const. art. V, § 2; State v. Dunn, 615 S.W.2d 543, 550[15] (Mo.App.1981). We believe Grover, Flick and Lucitt are controlling. Accordingly, Jacqueline's appeal must be dismissed.
In reaching this conclusion, we have not overlooked a line of cases asserting there is a right to appeal from any final judgment or order of the probate court in all cases not expressly prohibited by law. This line includes Pope, supra, 469 S.W.2d 841, along with In re Scott's Estate, 237 Mo.App. 1260, 173 S.W.2d 115 (Mo.App.1943); In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662 (banc 1925), and Coleman v. Farrar, 112 Mo. 54, 20 S.W. 441 (banc 1892). All of these cases cite § 478.070(4), RSMo 1969,[19] or its precursors, as authority. That statute was repealed by Laws 1978, p. 696, effective January 2, 1979. Since that date Missouri has had no comparable statute. Thus, the foundation of this line of cases, to the extent that it rests on the repealed statute, has been undermined. Moreover, none of the cases in this line involved an appeal from an order granting or denying an application for letters of administration in a decedent's estate.
We have also studied In re Estate of Erwin, 611 S.W.2d 564 (Mo.App.1981), holding that an appeal lies from an order refusing to remove or revoke the appointment of an administrator. 611 S.W.2d at 567[6]. The appeal here is not from that type order.
*958 Finally, we have considered whether the order from which Jacqueline appeals is appealable under § 512.020, RSMo 1978, independent of § 472.160, RSMo 1978, as amended by Laws 1980, p. 452. § 512.020 antedated the changes of January 2, 1979,[20] and we are aware of no appellate decision since that date dealing with the relationship between § 512.020 and § 472.160. We need not, however, examine that relationship here because the pertinent provision of § 512.020[21] is indistinguishable from the pertinent provision of § 472.160 which, as noted earlier, is virtually identical with the statutory provision in Grover that was held not to authorize an appeal there.
In sum, we have a narrow issue ruled by old, but apparently viable, authority to which we are required to adhere. State ex rel. Board of Public Utilities v. Crow, 592 S.W.2d 285, 288[3] (Mo.App.1979). Whether the law should be changed is not for us to decide.
We realize our holding leaves the parties where we find them. As their dispute proceeds, they may find In re Estate of Fedina, 491 S.W.2d 552 (Mo.1973), Younghaus v. Lakey, 559 S.W.2d 30 (Mo.App.1977), N.R. v. R.J.D., 588 S.W.2d 76 (Mo.App.1979), Webb v. First National Bank & Trust Co. of Joplin, 602 S.W.2d 780 (Mo.App.1980), and Matter of the Estate of Cannon, 622 S.W.2d 752 (Mo.App.1981), helpful.
Appeal dismissed.
GREENE, C.J., and FLANIGAN and MAUS, JJ., concur.
NOTES
[1] Jacqueline's application for letters shows her address as Rural Route 2, Kankakee, Illinois. In compliance with § 473.117.3, RSMo 1978, as amended by Laws 1981, p. 620, Jacqueline attached to her application a designation of a Missouri resident as agent for service of process and receipt of notice.
[2] An inventory and appraisement of Robert's estate, filed by Brown, lists real estate of the aggregate value of $43,000 and personal property of the aggregate value of $2,175.
[3] We find no mention of lack of jurisdiction in the probate division's order.
[4] Until January 2, 1979, there was a probate court in each county. Probate courts were abolished by the amendments to article V of the Constitution of Missouri adopted by election August 3, 1976, effective January 2, 1979. Since the latter date, the probate division of the circuit court has had original jurisdiction of matters formerly within the original jurisdiction of the probate court. § 472.020, RSMo 1978, effective January 2, 1979.
[5] At that time, appeals from a probate court were taken to the circuit court, and the latter became possessed of the cause, to hear, try and determine it anew, without regard to any error, defect or other imperfection in the proceedings of the probate court. § 292, RSMo 1889, carried forward, as amended, as § 472.250, RSMo 1969. This procedure prevailed until January 2, 1979, when probate courts were abolished (footnote 4, supra). Since January 2, 1979, appeals from the probate division of the circuit court have been taken to the appropriate appellate court. § 472.160.1, RSMo 1978, effective January 2, 1979.
[6] § 285, RSMo 1889, provided:
"Appeals shall be allowed from the decision of the probate court to the circuit court, in the following cases: First, on all demands against an estate exceeding ten dollars; second, on all settlements of executors and administrators; third, on all apportionments among creditors, legatees or distributees; fourth, on all orders directing the payment of legacies, making distribution or making allowances to the widow; fifth, on all orders for the sale of personal estate because distribution cannot be made in kind; sixth, on all orders for the sale of real estate; seventh, on judgments for waste; eighth, on proceedings to recover balances escheated to the state; ninth, on all orders revoking letters testamentary or of administration; tenth, on orders making allowances for the expenses of administration; eleventh, on orders for the specific execution of contracts; twelfth, on orders compelling legatees and distributees to refund; thirteenth, on the refusal of the court to order sale of real estate to pay debts or legacies; fourteenth, on refusal of the court to order distribution or apportionment among creditors; fifteenth, and in all other cases where there shall be a final decision of any matter arising under the provisions of this chapter. And the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration."
The present statute is § 472.160.1, RSMo 1978, as amended by Laws 1980, p. 452. It appears in footnote 17, infra.
[7] Footnote 5, supra.
[8] Flick v. Schenk, 136 Mo.App. 164, 117 S.W. 93 (1905).
[9] § 285, RSMo 1889 (footnote 6, supra), on which Grover was based, was carried forward in RSMo 1899 as § 278. Flick, 110 S.W. at 1075; Appendix, Former Probate Laws, Vol. 26A, V.A.M.S. (1956), p. 413, § 467.010.
[10] There is, however, a holding that no appeal lies from a probate court order adjudicating an elderly lady incompetent and appointing a guardian of her person and estate. In re Shortridge, 229 Mo.App. 1011, 84 S.W.2d 983 (1935). The appeal was by a nephew, the finding of incompetency was unchallenged, and the only reason for the appeal was the nephew's dissatisfaction with the guardian.
[11] § 472.160.1, RSMo 1969, provided, in pertinent part: "Any interested person aggrieved thereby may appeal from the order, judgment or decree of the probate court or of the judge thereof in the following cases:
....
(15) In all other cases where there is a final order or judgment of the probate court under this code except orders admitting to or rejecting wills from probate."
[12] § 472.200, RSMo 1969, provided, in pertinent part: "Appeals from orders, judgments or decrees of the probate court shall be taken to the circuit court ...."
[13] § 478.070, RSMo 1969, provided, in pertinent part: "The circuit courts in the respective counties in which they may be held shall have power and jurisdiction as follows:
....
(4) Appellate jurisdiction from the judgment and orders of county courts, probate courts and magistrates, in all cases not expressly prohibited by law, and shall possess a superintending control over them, and a general control over executors, administrators, guardians, curators, minors, idiots, lunatics and persons of unsound mind."
[14] An order setting aside an earlier order which (a) awarded a widower exempt property, a maintenance allowance and a homestead allowance out of the property of his deceased wife, (b) granted his request for a refusal of letters of administration on her estate under § 473.090, RSMo 1969, and (c) denied an application for letters of administration by two of her sisters, was held appealable as a "special order after final judgment" under § 512.020, RSMo 1969. In re Estate of Sympson, 577 S.W.2d 68 (Mo. App.1978). The order setting aside the earlier order, and the earlier order itself, were entered by the circuit court, the cause having been transferred there after one of the parties filed a successful motion to disqualify the probate judge. In another case, In re Estate of O'Neal, 468 S.W.2d 671 (Mo.App.1971), the decedent's will named his daughter executrix. After the will was admitted to probate, several months passed with nothing being done. Eventually, a son applied for appointment as administrator c.t.a. Weeks later, the named executrix applied for letters. The probate court, after hearing, found the named executrix disqualified, and appointed the son. The named executrix moved for rehearing, and to revoke the son's appointment. Her motions were denied and she appealed to circuit court, which affirmed the probate court. In the Court of Appeals, her only point concerned the timeliness of the probate court hearing. She did not challenge the finding that she was disqualified. The son raised no issue of appealability of the probate court order. The Court of Appeals found it unnecessary to decide the point raised by the named executrix, noting that her disqualification made it mandatory for the probate court to issue letters to some qualified person, and that the son's qualifications had not been attacked. The judgment was affirmed.
[15] Footnote 4, supra.
[16] Footnote 5, supra.
[17] § 472.160.1, RSMo 1978, as amended by Laws 1980, p. 452, provides: "Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases:
(1) On the allowance of any claim against an estate exceeding one hundred dollars;
(2) On all settlements of the personal representative;
(3) On all apportionments among creditors, legatees or distributees;
(4) On all orders directing the payment of legacies, making distribution or making allowances to the surviving spouse or unmarried minor children;
(5) On all orders for the sale of assets of the probate estate;
(6) On all orders for the sale of real estate;
(7) On judgments for waste;
(8) On proceedings to recover balances escheated to the state;
(9) On all orders revoking letters testamentary or of administration;
(10) On orders making allowances for the expenses of administration;
(11) On orders for the specific execution of contracts;
(12) On orders compelling legatees and distributees to refund;
(13) On all orders denying any of the foregoing requested actions;
(14) In all other cases where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate."
[18] Footnote 6, supra.
[19] Footnote 13, supra.
[20] Footnotes 4 and 5 supra.
[21] § 512.020, RSMo 1978, provides, in pertinent part: "Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction ... from any final judgment in the case...."
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654 S.W.2d 627 (1983)
STATE of Missouri, Respondent,
v.
Arthur L. BURGIN, Appellant.
No. WD 33152.
Missouri Court of Appeals, Western District.
April 12, 1983.
As Modified June 28, 1983.
Motion for Rehearing and/or Transfer to Overruled and Denied June 28, 1983.
*628 James Fletcher, Public Defender, Anne Hall, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Before WASSERSTROM, P.J., and TURNAGE and CLARK, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied June 28, 1983.
TURNAGE, Judge.
Arthur L. Burgin was charged with forcible rape, § 566.030 RSMo 1978,[1] and forcible sodomy, § 566.060. The jury found him guilty on the rape charge only, and assessed punishment at 10 years imprisonment. In light of the fact that Burgin was a persistent sexual offender under § 558.018 RSMo 1980, the court imposed a sentence of 30 years without probation or parole.
Burgin contends that the jury verdict was inconsistent based on the evidence, and that the court was without authority to extend his sentence as a persistent sexual offender because the legislature had failed to provide a procedure for imposing an extended term. Affirmed.
The testimony of the victim, who testified that she had been both forcibly raped and sodomized, was the only direct evidence in the case. Thus, there was ample evidence on which the jury could have found Burgin guilty of both forcible rape and forcible sodomy, and Burgin does not contest the sufficiency of the evidence for his rape conviction.
*629 Burgin first contends that since the evidence from which the jury found him guilty of forcible rape also supported the forcible sodomy charge, the jury verdict was inconsistent. Burgin reasons that this inconsistency requires a reversal of his rape conviction.
This precise argument was raised and rejected in State v. Doney, 622 S.W.2d 227, 229[2] (Mo.App.1981). There, the defendant was convicted of rape and one count of deviate sexual intercourse and acquitted of another count of deviate sexual intercourse based upon the uniform testimony of a single witness. The Doney court relied on State v. McCall, 602 S.W.2d 702, 708[22] (Mo.App.1980), for the proposition that while a jury's conclusions may offend the law's penchant for consistency, inconsistent verdicts among the varied charges of a multi-count indictment are not self-vitiating. Thus, Burgin's conviction on the rape count and his acquittal on the sodomy count does not constitute an inconsistent verdict which requires reversal of the rape conviction.
Burgin's next argument involves a claim that the legislature failed to provide a procedure for the imposition of an extended term for persons found by the court to be persistent sexual offenders. In 1980 the legislature passed § 558.018, which requires that courts sentence a person who has pleaded guilty to or who has been found guilty of forcible rape to an extended term of imprisonment if that person is a persistent sexual offender. Section 558.018 defines persistent sexual offender as one who has been previously convicted of rape, forcible rape, sodomy, forcible sodomy, or an attempt to commit any of these crimes. That section also specifies that the term of imprisonment for one found to be a persistent sexual offender be set at not less than 30 years and be served without probation or parole.
The gist of Burgin's second argument is that the court was wrong in using § 558.018 in his case, because the legislature failed to provide a procedure for imposing the extended term discussed therein. As a basis for comparison, Burgin cites §§ 558.016 and 558.021, the former of which provides for extended terms for those found to be prior offenders, persistent offenders, or dangerous offenders, and the latter of which prescribes the procedure to extend the term to those persons. Burgin concludes that the absence of a comparable statute prescribing any procedure for extending the term of persistent sexual offenders deprives the court of the power to impose an extended term under § 558.018.
This argument is not supported by the law. The power to define crimes and prescribe punishment is exclusively vested in the legislature. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 235[19] (Mo. banc 1982). Before a defendant's term may be extended, the courts must accord such a defendant due process by guaranteeing the right to be present with counsel, the opportunity to be heard and to be confronted with witnesses against him and the right to cross-examine and to offer evidence in his own behalf. Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).
In State ex rel. Macklin v. Rombauer, 104 Mo. 619, 15 S.W. 850, 852 (1891), the court considered a provision of the 1875 constitution which granted the supreme court the power to issue writs of prohibition, but which failed to prescribe a procedure for the exercise of such jurisdiction. The Rombauer court stated: "It is a general rule of law which has passed into a maxim that a grant of power or jurisdiction is supposed to tacitly imply a grant of that without which the grant itself would be ineffectual." This rule of construction was also stated in Ex Parte Sanford, 236 Mo. 665, 139 S.W. 376, 383 (banc 1911), where the court stated that "[t]here is a familiar rule of statutory construction which fits this case like a glove fits the hand, namely, that, when a power is given by statute, everything necessary to make it effectual or requisite to attain the end is necessarily implied." The same rule was stated in Shull v. Boyd, 251 Mo. 452, 158 S.W. 313, 320[7] (Mo.1913):
It has always been the rule that, when a clear main power is granted by the law, everything necessary to make it effectual *630 to attain its principal end is necessarily implied. A grant of power is to be construed so as to include the authority to do all usual things necessary to accomplish the object so granted.
Combining this rule of construction with the due process doctrine, it follows that when the legislature grants the power to impose an extended term for a person found to be a persistent sexual offender, the power to do all that is necessary to accomplish the sentencing of such a person has also been granted by necessary implication, and that in such cases the courts need only follow a procedure which will insure due process. Thus, the statutory grant of power to find persons to be persistent sexual offenders and to impose an extended term of imprisonment necessarily carries with it the power to adopt a procedure which would insure due process.
In extending Burgin's prison term, the court followed the procedure outlined in § 558.021 even though that section was not specifically referred to in the persistent sexual offender section. That section prescribes a procedure which accords full due process rights, and Burgin in fact concedes that his full due process rights were granted. Thus, the court acted properly in implementing § 558.018 by following the procedures set forth in § 558.021.
Burgin further contends that the court was not authorized to extend his term of imprisonment under § 558.018 in light of § 557.036. Section 557.036.2 provides, in pertinent part, that the court shall instruct the jury as to the range of punishment and declare the punishment as a part of their verdict unless the state pleads and proves that the defendant is a prior offender, a persistent offender, or a dangerous offender as defined in § 558.016. Subsection 4 of § 557.036 states that if the defendant is found to be a prior offender, a persistent offender, or a dangerous offender as defined in § 558.016, and if he is found guilty of a Class B, C, or D felony, the court shall proceed to sentence as provided in § 558.016.
Burgin contends that since pursuant to subsection 2(2) of § 557.036 the court may enhance the sentences of prior, persistent, or dangerous offenders only,[2] that section bars the court from enhancing a persistent sexual offender's punishment because persistent sexual offenders are excluded from the section. Because of this, Burgin concludes that the court acted without authority in extending his imprisonment beyond the term fixed by the jury in its verdict.
Section 558.018 provides that the court shall sentence a person who has pleaded guilty to, or has been found guilty of, the felony of rape or forcible rape and other sexual crimes to an extended term of imprisonment, and defines the term persistent sexual offender. There is no question that Burgin meets the definition of persistent sexual offender. Section 558.018 parallels § 558.016, except that the former is not mentioned in § 557.036, and that the latter is set forth in discretionary rather than mandatory terms.
Section 557.036 was passed in 1977 and amended in 1981. Section 558.018 was passed in 1980, while § 558.016 was passed in 1977 and amended in 1980 and 1981.
In State v. Van Horn, 625 S.W.2d 874 (Mo.1981), the court was faced with a conflict involving § 557.036. There the court stated the applicable rule at 877[1-3]:
The primary rule of statutory construction in a situation such as this is to ascertain and give effect to the legislative intent. In doing so the entire legislative act must be considered and all provisions must be harmonized if reasonably possible. Every word, clause, sentence, and section of an act must be given some meaning unless it is in conflict with the ascertained legislative intent.
*631 Applying that rule of construction, it follows that the legislature intended to extend the term of imprisonment for those who have been found to be persistent sexual offenders. There is nothing in § 557.036 to indicate that a term of imprisonment may not be extended by another statute in the same manner that it may be extended as set forth in subsection 4 of that statute, which refers specifically to § 558.016.
A further line of reasoning is based on the fact that § 558.016 states that the court may extend the terms of prior, persistent, or dangerous offenders, while § 558.018 states that the court shall impose an extended sentence for persistent sexual offenders. In light of that language, the legislature arguably attached more importance to the imposition of extended sentences for persistent sexual offenders, as reflected by the fact that the legislature made such impositions mandatory under § 558.018, while similar impositions under § 558.016 were left to the discretion of the court.
There is an additional rule of statutory construction which provides that "statutes relating to the same or similar subject matter, even though enacted at different times and found in different chapters, are in pari materia and must be considered together when such statutes shed light on the statute being construed." State v. Kraus, 530 S.W.2d 684, 686-87[4] (Mo. banc 1975). This court has no difficulty in reading § 557.036 together with § 558.018 as a legislative mandate that a person found to be a persistent sexual offender have his term of imprisonment extended beyond that fixed by the jury.
Burgin further argues that § 557.036 and § 558.018 are inconsistent with each other, and that the more particular of the two, which he claims is § 557.036, should prevail over the more general. While that rule is indeed valid in cases of irreconcilable conflict, it is not valid in cases such as this one where the two statutes in question can be read together and harmonized such that force may be given to the provisions of each. State ex rel. Chicago, Rock Island and Pacific Railroad Company v. Public Service Commission, 441 S.W.2d 742, 746[2] (Mo.App.1969).
The judgment is affirmed.
All concur.
NOTES
[1] All sectional references, unless otherwise indicated, are to Missouri Revised Statutes, 1978.
[2] Section 557.036 does not explicitly provide that the court may extend the punishment of a person found to be a prior, persistent, or dangerous offender. Rather, subsection 4 of that statute states that if the defendant is found to fit in one of those three categories of offenders and has been found guilty of a Class B, C, or D felony, the court shall proceed as provided in § 558.016.
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291 Pa. Super. 224 (1981)
435 A.2d 879
Carol DUNBAR, Appellant,
v.
James C. DUNBAR, Jr.
Superior Court of Pennsylvania.
Argued November 10, 1980.
Filed October 9, 1981.
*225 *226 Theodore F. Huckestein, Jr., Pittsburgh, for appellant.
John L. Bailey, Pittsburgh, for appellee.
Before CAVANAUGH and HOFFMAN, JJ.
CAVANAUGH, Judge:
The dispute in this case involves the amount of child support the father-appellee should be required to pay. The parties were divorced in 1975 and the father was subsequently ordered to pay $400.00 per month for support of his three children. The lower court was presented with a petition to increase support and for attachment for noncompliance by the mother, and a petition to decrease the support order and strike the arrears by the father. The lower court decreased the monthly award to $200.00; ordered a wage attachment for that amount; and modified the previous order to allow for the payment of arrears, which had been reduced to judgment, in monthly installments of $40.00. Mrs. Dunbar appeals. We reverse and remand.
Mr. Dunbar made the required support payments until September, 1976. At that time he sought relief from the order from the Administrative Judge of the Family Division in Allegheny County due to the fact that a creditor had attached his bank accounts. In the ensuing two years four *227 hearings before three different judges were held as a result of the father's failure to comply with the support order. (Mr. Dunbar is a real estate developer who met with serious business reversals, as will be demonstrated in greater detail below).
The first hearing was held before Judge Zeleznik on January 24, 1977, under Mrs. Dunbar's rule to enforce the support order. After a hearing the court continued the case for approximately forty-five days. The court noted in its order that Mr. Dunbar's bank accounts had been garnished. On June 13, 1977, the parties again appeared before Judge Zeleznik to consider Mr. Dunbar's Rule to suspend the arrears and cancel the support order, and Mrs. Dunbar's petition to reduce the arrears to judgment. On September 22, 1977, the court ordered that the record arrears of $4,100.00 be reduced to judgment, that the Rule to suspend arrears and cancel the support order be discharged and that the existing support order remain in full force and effect.
The third hearing was held to consider Mrs. Dunbar's petition for contempt. The court, by Judge Bigley, made the rule for contempt absolute and ordered Mr. Dunbar incarcerated unless he paid the record arrears of $2,800.00 within thirty days. The final contempt hearing was continued for three weeks so that Mr. Dunbar could make a three week trip to Europe. The postponement was allowed because Mr. Dunbar's father tendered a $500.00 support payment on his son's behalf. Mr. Dunbar was subsequently sentenced to sixty days in the Allegheny County jail, but was released early due to good behavior and for health reasons. Following his release, the support order was reinstated in all respects and Mr. Dunbar was ordered to pay the sum of $2,800.00 to Mrs. Dunbar within sixty days. The court noted that funds from a certain bank account had become available to the father from which he could make the support payments.
The fourth hearing was held on October 5, 1978, before Judge Kaplan. Stating that changed circumstances now render the father incapable of paying the prior support *228 order, the lower court reduced the award by fifty per cent and modified the previous order to pay arrears in a lump sum to allow for monthly installment payments. The appellant-mother argues that the support order should have been increased rather than decreased because of appellee's improved circumstances since the prior hearing.
The scope of review in a support case is a narrow one. Absent a clear abuse of discretion, the appellate court will defer to the order of the lower court. Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980); Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976); Comm. ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 310 A.2d 672 (1973). The hearing judge has seen and heard the witnesses, and so has the better opportunity to evaluate the issues on their merits. Banks v. Banks, supra, 275 Pa.Super. at 445, 418 A.2d at 1373; Com. ex rel. Friedman v. Friedman, 223 Pa.Super. 66, 67, 297 A.2d 158, 159 (1972). Orders of support are not final and may be increased or decreased where the financial conditions of the parties change. Banks v. Banks, supra; Com. ex rel. Fusco v. Fusco, 247 Pa.Super. 413, 372 A.2d 893 (1977). However, a party seeking to modify a support order has the burden of proving by competent evidence the existence of materially and substantially changed circumstances since the entry of a prior order. Com. ex rel. Delbaugh v. Delbaugh, 258 Pa.Super. 127, 392 A.2d 717 (1978); Com. ex rel. Hall v. Hall, 243 Pa.Super. 162, 364 A.2d 500, remanded, 259 Pa.Super. 214, 393 A.2d 794 (1978). Thus a petition to modify an order of support is not a substitute for an appeal and cannot bring up for review matters adjudicated in making the prior order. Com. ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976); Com. ex rel. Long v. Long, 181 Pa.Super. 41, 121 A.2d 888 (1956).
Although the lower court held that the reduction of the award from four hundred to two hundred dollars was justified by changed circumstances, our own review of the record brings us to a contrary conclusion. Mr. Dunbar, as a real estate developer, has met with serious business reversals. *229 At one time he was quite successful, but at the time of the hearing before Judge Kaplan he was working as a maintenance man for a company owned by his brother in apartment complexes owned by his father. Mr. Dunbar formerly owned a twenty-eight per cent interest in one of the buildings that he now works in as a maintenance man.
A review of the record reveals, however, that these business reversals had been in existence at the time of the prior orders in this matter, and that the appellee's financial picture had, in fact, improved since the previous order. In July, 1977, Union National Bank filed judgment and attached the father's bank account so that appellee had no more funds. A partition judgment and an arrearages judgment existed and remained unpaid at the time of the April 28, 1978, hearing preceding the May 1, 1978, order. A nine thousand dollar annual stipend given to appellee by his father commencing in the fall of 1976 was discontinued in December, 1977. The last building project attempted by the appellee as a developer was the Cochran Hall Condominium. The lender for this was Mellon Bank, which foreclosed on the loan in April, 1977. Thus all of Mr. Dunbar's business reversals, liens, judgments and attachments existed prior to the May 1, 1978 order.
Moreover, the appellee's financial situation was actually better at the time of the order appealed from instantly than at the time of the previous orders which had upheld the amount of the order and which refused to remit the record arrearages on that obligation. At the time of the hearing below the appellee's liens and judgments had been satisfied. With the exception of the $2,800.00 in outstanding support arrearages, his statement sheet would have read "zero assets and zero liabilities." Counsel for the father conceded that, "this management job that he has is really more income than he's had in three or four years . . . so actually, this will be the first time in years that he's had a W-2." Therefore, we hold that the lower court erred in reducing the award due to the absence of materially and substantially changed circumstances.
*230 Mrs. Dunbar argues that materially and substantially changed circumstances exist so as to justify an increase in the support order. She claims that her expenses for raising three children have increased substantially and that most of the burden for support has been assumed by her retired father.
The lower court failed to consider Mrs. Dunbar's claim of changed circumstances. Therefore, we remand the case for a consideration of this question. If the lower court determines that changed circumstances warrant an increase in the support order, in fixing an award of support, it should be guided by certain well-established principles: Because the purpose of an order of support is the welfare of the children and not the punishment of the parent, the award must be fair and not confiscatory. It is intended to provide such allowance for support as is reasonable, considering the property, income and earning capacity of the father and the condition and station in life of the family. See Dugery v. Dugery, 276 Pa.Super. 51, 419 A.2d 90 (1980); Com. ex rel. Warner v. Warner, 194 Pa.Super. 496, 168 A.2d 755 (1961).
The earning capacity of the appellee should be closely examined. Although a once successful real estate developer and a licensed real estate broker, he is employed as a maintenance man. The lower court stated that the appellee, "partially handicapped by the same physical problem that contributed to his early release from jail [diabetes] has endeavored to restore his physical, financial and emotional stability by taking the only job offered him by the family enterprise." There is no testimony on record to the fact that appellee's diabetes in any way hinders his ability to find other employment. Also accepting the "only job offered by the family enterprise" has no bearing on his ability or capacity to find work at a salary commensurate with his experience and the needs of his family.
This is especially true here where the appellee's father "supports" the appellee so that he can afford to take a job earning a meager salary of $400.00 per month and thereby avoid paying support payments. Thus Mr. Dunbar, a maintenance *231 man despite his other credentials, maintains a membership in an exclusive country club and private social club; can make trips to distant cities to attend football games; lives in an apartment rent-free with all utilities, including phone, and expenses paid. All of these are provided by his father. He has the use of two automobiles with insurance paid; free office facilities; and is able to pay thirty-nine dollars a month to store an airplane that he owns.
Mr. Dunbar's brother, by whom Dunbar is employed, testified that he also employs real estate sales agents. The vast majority of these agents make well in excess of the appellee's salary. The record indicates that Mr. Dunbar's father harbors an animosity towards Mrs. Dunbar which has developed into an estrangement from the grandchildren. The grandfather has disinherited his son's children and at one point threatened to terminate his son's stipend of $9,000 a year if any of it went to Mrs. Dunbar for child support. Mr. Dunbar described his father's attitude: "He is upset. Not with the grandchildren, he don't [sic] have any compulsion that way. He just doesn't want her to get her hands on any money."
In its opinion the lower court makes much of the grandfather's unwillingness to make support payments or to otherwise bail his son out of his financial woes. However, the grandfather's lack of contribution cannot serve as an excuse for appellee's persistent refusal to abide by court orders. It is the father's duty to support and not the grandfather's, which is well-nigh absolute, Com. ex rel. Mickey v. Mickey, 220 Pa.Super. 39, 280 A.2d 417 (1971); Com. ex rel. Snively v. Snively, 206 Pa.Super. 278, 212 A.2d 905 (1965).
The appellant also argues that the lower court abused its discretion by permitting the appellee to pay arrearages in monthly installments rather than in a lump sum. The payment of the $2,800.00 arrearages had been the subject of several orders prior to that of Judge Kaplan. By Judge Zeleznik's order of September 22, 1977, arrearages in the *232 amount of $4,100.00 had been reduced to judgment. On May 1, 1977, the appellee was held in contempt for failing to pay $2,800.00 outstanding in arrearages. Appellee failed to purge himself of the contempt and was jailed. Upon his release he was again ordered to pay $2,800.00 within sixty days. The order dated August 11, 1978, stated that the funds at Mount Lebanon Savings and Loan were then available to appellee for the purpose of paying child support. That same day Mr. Dunbar withdrew eight thousand dollars from Mount Lebanon Savings and Loan and gave it to his brother for payment of expenses the brother had allegedly incurred on appellee's behalf. Dunbar fails to state what these expenses were or to what amount he was indebted to his brother. Thus, despite these court orders, the $2,800.00 in arrears remained unpaid at the time of the hearing before Judge Kaplan. Judge Kaplan ordered the arrearages to be paid in monthly installments of forty dollars.
In its opinion the lower court holds that the appellee is entitled to this relief from the lump sum payment due to changed circumstances. However, we have found no changed circumstances warranting a reduction in the order of support. Therefore, in view of the absence of changed circumstances and the contemptuous and flagrant disobedience of prior court orders, the lower court abused its discretion in thus relieving the appellee of his accumulated arrearages by permitting him to pay the lump sum over what will amount to be a period of almost six years. While it is true that a court may in appropriate circumstances grant the parent relief in the form of a temporary order reducing the periodic sums payable, an order suspending temporarily the payment of any sums, or any order remitting arrearages, 42 Pa. C.S.A. § 6710; Com. ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 367 n.3, 421 A.2d 762, 767 n.3 (1980), the instant case does not provide an appropriate circumstance. See also Com. ex rel. Caswell v. Caswell, supra (concurring opinion by Spaeth, J.) (as long as father's earning capacity was unimpaired, he was not entitled to either a temporary reduction in the support order or relief from accumulated arrears).
*233 Order of the lower court reversed and case remanded for proceedings consistent with this opinion.
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181 Conn. 434 (1980)
JOHN J. LYNCH
v.
CLASSIE DAVIS
Supreme Court of Connecticut.
Argued May 8, 1980.
Decision released July 1, 1980.
COTTER, C. J., BOGDANSKI, PETERS, HEALEY and PARSKEY, JS.
*435 Douglas S. Ebenstein, for the appellant (defendant).
Robert F. Stengel, for the appellee (plaintiff).
PETERS, J.
The sole issue on this appeal is the validity of a bond for deed under the statute of frauds. The plaintiff, John J. Lynch, the owner of the property, brought an action for a judgment declaring the rights to the property. He asked that the bond for deed be declared invalid and sought monetary damages and an injunction to require the defendant, Classie Davis, to release the bond for deed. The defendant by answer, special defense and counterclaim, alleged that the plaintiff had failed to comply with certain representations in the deed concerning the physical condition of the property. The defendant asked for specific performance of the bond for deed, with a financial allowance to compensate for alleged defects in the property. The trial court rendered a judgment that the bond for deed was invalid and the defendant has appealed.
By agreement of counsel, the issues before the trial court were limited to three specific questions concerning the validity of the bond for deed under *436 the statute of frauds, General Statutes § 52-550.[1] The parties agreed to postpone to a future time the remedial consequences that would flow from a determination that the statute had been satisfied. We therefore do not address, at this time, any question relating to the possible unenforceability of the bond for deed on grounds of unconscionability, or other considerations of an equitable nature, to which the plaintiff has interstitially adverted on this appeal.[2]
The trial court, in accordance with the stipulation of the parties, did not consider the underlying claims of the parties disputing which of them had failed to perform pursuant to the bond for deed. The court ascertained that the bond for deed was an agreement for the sale of real property and hence within the ambit of the statute of frauds. That conclusion is not now challenged by either party. The court then determined that the agreement *437 met the requirements of the statute in two respects but failed to comply in one respect. As to the plaintiff's claims that the agreement was invalid because of vagueness and uncertainty concerning the description of the premises and assumption of the sewer lien, the court found for the defendant. Since the plaintiff has filed neither a cross appeal; Practice Book, 1978, § 3003; nor a preliminary statement of issues; Practice Book, 1978, § 3012 (a); contesting these adverse rulings, these conclusions of the trial court are not now subject to review in this court. The only matter properly before us is the trial court's adjudication of the plaintiff's third claim, that the agreement was defective under the statute of frauds because of uncertainty and indefiniteness in the terms of the agreement concerning the purchase money mortgage.
The provisions of the bond for deed that pertain to the purchase money mortgage are the following: Paragraph 3 of the agreement states: "The SELLER will take back a $65,000.00 purchase money mortgage deed and note with interest at 8% per annum payable in three hundred (300) equal monthly installments of $501.69 per month. The first payment will be one month after the date of closing.[3] Said purchase money mortgage deed and note shall contain the usual provisions found in State of Connecticut purchase money mortgage deeds and notes and will include, but not limited to, attorney's fees in the event of default, the right of the holder of the note to accelerate payment." Paragraph 4 of the agreement states: "If default *438 is made in any payment for the period of thirty (30) days, the holder of this note has the right to demand the entire amount due."
In its interpretation of this language, the trial court concluded that the agreement's specific provisions spelled out, with sufficient definiteness, all the essential terms of the purchase money mortgage. This essential certainty was, however, undermined, in the eyes of the court, by the indefiniteness of the reference to the usual Connecticut provisions for purchase money mortgage deeds. The defendant presented no evidence whatsoever at the trial to establish the terms of this reference. The court found, as a fact, that there is no standard Connecticut purchase money mortgage enforced by statute or recognized by case law. In light of the uncertainty thus created, the court concluded that the agreement as a whole was fatally indefinite.
The test that governs the validity of written agreements for the sale of real property under the statute of frauds is not at issue. The statute requires that all such contracts, in the absence of extenuating circumstances such as part performance or reliance, be evidenced by a written memorandum stating the contract "with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof ... and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement." Montanaro v. Pandolfini, 148 Conn. 153, 157, 168 A.2d 550 (1961); Botticello v. Stefanovicz, 177 Conn. 22, 31, 411 A.2d 16 (1979); Santoro v. Mack, 108 Conn. 683, 687-88, 145 A. 273 (1929). Our statute does not require that the memorandum of the *439 contract be the contract itself; Handy v. Barclay, 98 Conn. 290, 295, 119 A. 227 (1922); instead, it is sufficient if the memorandum, with reasonable certainty, furnishes reliable evidence that the parties have come to a complete agreement. A memorandum is insufficient if it fails to specify the terms of payment of any part of the purchase price; Marsico v. Kessler, 149 Conn. 236, 238, 178 A.2d 154 (1962); Montanaro v. Pandolfini, supra, 158; Garre v. Geryk, 145 Conn. 669, 674, 145 A.2d 829 (1958); Santoro v. Mack, supra, 688-89; Gendelman v. Mongillo, 96 Conn. 541, 546, 114 A. 914 (1921); or lacks other essential terms concerning performance contemplated by the contract. East Haven v. New Haven, 159 Conn. 453, 461-62, 271 A.2d 110 (1970). See Restatement (Second), Contracts § 207 (Tentative Draft 1973).[4]
The parties' disagreement at this stage in the proceedings is therefore a narrow one. The written bond for deed adequately described, in reasonable detail, the property to be sold, the parties to the sale, and the terms of payment. The purchase money mortgage, on which the trial court based its conclusion that the statute of frauds had not been satisfied, was in and of itself sufficiently detailed, for it spelled out the total amount of the mortgage, the rate of interest to be paid, the amount of each monthly payment, and the date on which mortgage *440 payments were to commence. The court concluded that none of the essential terms of the agreement as a whole or the purchase money mortgage in particular had been left uncertain. The court based its decision nonetheless to disallow the memorandum, despite its certainty as to the essentials of the parties' agreement, on the reference to "the usual provisions found in State of Connecticut purchase money mortgage deeds and notes." Although this language was found not to be essential to a complete agreement, the court found that the crossreference left uncertain nonessential terms which might possibly have an impact upon default, upon penalties for late payment, and upon the obligation to procure insurance. It is clear that the court would have held the bond for deed enforceable but for its nonessential reference to nonessential terms in nonexistent usual provisions in state of Connecticut purchase money notes. The defendant maintains that the court was in error in allowing the possible impact of unessential terms to invalidate a written memorandum that states the essential terms of a contract with reasonable certainty. We agree.
It is important to recognize that our statute of frauds explicitly permits an action to be brought "upon any agreement for the sale of real estate" if "such agreement, or some memorandum thereof, is made in writing and signed by the party to be charged...." (Emphasis added.) General Statutes § 52-550. As we have repeatedly held, in the cases cited supra, a memorandum is sufficient, even though it does not recite the underlying contract in its entirety, if it provides reliable written evidence that the parties have come to a complete agreement. The function of the statute is evidentiary, to prevent enforcement through fraud or perjury of contracts *441 never in fact made. See 2 Corbin, Contracts § 498, esp. at pp. 680-81 (1950); 4 Williston, Contracts § 567A, esp. at p. 20 (3d Ed. 1961); Restatement (Second), Contracts § 207, comment c (Tentative Draft 1973). That function is adequately served by a writing stating, with reasonable accuracy, the essential terms of the agreement.[5]
The record in this case, sparse as it is, illustrates the wisdom of restricting spurious reliance on the statute of frauds. The plaintiff's original complaint did not allege any failure of the parties to agree but sought damages from the defendant because of her alleged failure to perform her obligations under the bond for deed. Only when the defendant's answer and counterclaim put the plaintiff's own performance in issue did the plaintiff suggest that the bond for deed did not conform to the statute of frauds. From the pleadings, it would appear that the parties' disputes about performance relate to matters entirely independent of the terms of the purchase money mortgage. The parties' own conduct thus reenforces our conclusion that the bond for deed stated, with reasonable certainty, the essential terms of the contract between them.
There is error, the judgment is set aside, and the case is remanded for further proceedings consistent herewith.
In this opinion the other judges concurred.
NOTES
[1] Section 52-550 provides: "STATUTE OF FRAUDS; WRITTEN AGREEMENT OR MEMORANDUM. No civil action shall be maintained upon any agreement, whereby to charge any executor or administrator, upon a special promise to answer damages out of his own estate, or against any person upon any special promise to answer for the debt, default or miscarriage of another or upon any agreement made upon consideration of marriage or upon any agreement for the sale of real estate or any interest in or concerning it or upon any agreement that is not to be performed within one year from the making thereof, unless such agreement, or some memorandum thereof, is made in writing and signed by the party to be charged therewith or his agent; but this section shall not apply to parol agreements for hiring or leasing real estate, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of such term."
[2] It is not contested that the plaintiff was 77 years of age when the agreement was signed by which he sold the property taking back a purchase money mortgage. The bond for deed was drafted by the defendant's attorney and signed in the office of the defendant's attorney; the plaintiff was not then represented by counsel.
[3] The date of the closing was stipulated in paragraph 5 of the agreement to take place on or before October 16, 1978.
[4] Restatement (Second), Contracts § 207 (Tentative Draft 1973) provides: "GENERAL REQUISITES OF A MEMORANDUM. Unless additional requirements are prescribed by the particular statute, a contract within the Statute of Frauds is enforceable if it is evidenced by any writing, signed by or on behalf of the party to be charged, which (a) reasonably identifies the subject matter of the contract, (b) is sufficient to indicate that a contract with respect thereto has been made between the parties or offered by the signer to the other party, and (c) states with reasonable certainty the essential terms of the unperformed promises in the contract."
[5] A memorandum under the statute of frauds, because it serves a purpose different than that of an integrated writing invoking the parol evidence rule, does not exclude the introduction of consistent additional nonessential parol terms. Calamari & Perillo, Contracts, p. 715 (2d Ed. 1977).
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181 Conn. 492 (1980)
HARVEY KOIZIM
v.
ELLEN KOIZIM
Supreme Court of Connecticut.
Argued April 10, 1980.
Decision released July 15, 1980.
COTTER, C. J., BOGDANSKI, PETERS, PARSKEY and WRIGHT, JS.
Ira B. Grudberg, with whom were Jonathan Katz and, on the brief, Howard A. Jacobs and John W. Watson, for the appellant (plaintiff).
Arnold J. Bai, with whom was Kevin R. Murphy, for the appellee (defendant).
PARSKEY, J.
In this action for the dissolution of a marriage the trial referee rendered a judgment dissolving the marriage based on intolerable cruelty on the part of the plaintiff husband. He was ordered *493 to pay lump sum and periodic alimony together with a substantial allowance for counsel fees. The present appeal attacks the lump sum alimony award as excessive, and challenges the allowance for counsel fees and the authority of the referee to issue a post-judgment restraining order.
The trial court articulated the factual basis for its decree in its memorandum of decision. See Practice Book, 1978, § 3060B. Although at trial the factual issues were vigorously disputed, for the purpose of this appeal the plaintiff does not seriously question the underlying facts. He contends rather that even if the facts found by the trial court are assumed to be true, the orders regarding lump sum alimony and counsel fees constituted an abuse of discretion.
The parties were married in 1950, a year before the plaintiff graduated from law school. The defendant considered the marriage a happy one until her husband informed her, in 1976, that he was dissatisfied with their relationship. A month later she was shocked and dismayed to learn from her husband that throughout their marriage he had been unfaithful to her. Because the plaintiff still professed his love for her, the defendant tried to make the best of the disastrous situation. The plaintiff, for his part, resumed his errant ways until the final separation in March, 1977.
While over the years the plaintiff contributed a substantial amount of money to the marriage, the defendant's contributions, both financial and otherwise, were very significant. In 1952 and 1953, as a result of a gift and an inheritance from her father, the defendant contributed $94,000 to the marriage. This money was invested primarily in the homes *494 built by the parties. The value of this contribution has greatly appreciated over the course of the marriage.
The defendant also made substantial contributions to the plaintiff's careers in law and banking.She kept the books of his law partnership for a number of years. For approximately four years she received no payment for her work, although thereafter she was given a small salary. By performing a rather complicated economic survey she directly contributed to the formation of the County Federal Savings and Loan Association, an institution in which the plaintiff is a director and major stockholder.
The trial court ordered the plaintiff's interest in the family residence to be transferred to the defendant, with all mortgages on the property to be removed by the plaintiff within three years. The furnishings in the residence were to be the sole property of the defendant, but the couple's art collection was to be divided equally either by mutual determination or by sale. In recognition of the defendant's interest in the shares of stock of the County Federal Savings and Loan Association and in other capital assets of the marriage, the plaintiff was ordered to pay the defendant $60,000 per year for a period of ten years. Finally, the court ordered periodic alimony of $4000 per month and an allowance for counsel fees in the approximate amount of $55,000.
THE ALIMONY AWARDS
One of the factors which the court considered in arriving at its lump sum award was the defendant's equitable 50 percent interest in the shares of the County Federal Savings and Loan Association.
*495 The original shares, purchased solely in the plaintiff's name in December of 1976, were financed by means of a promissory note to City Trust cosigned by the defendant and secured by a mortgage on the jointly owned family residence. The defendant testified that the stock was supposed to be in joint names and that she relied on her husband's representation in this respect. The court found that a confidential relationship existed between the parties and that the plaintiff, by purchasing the stock solely in his own name, abused that relationship. Relying on this abuse and principles of constructive trust, the court fixed the defendant's interest in the stock at 50 percent.
The plaintiff contends that because no fraud was shown, there was no basis for the imposition of a constructive trust. The plaintiff does not challenge the existence of a confidential relationship between the parties.[1] Where such a relationship exists, proof of fraudulent intent is not a condition precedent for the imposition of a constructive trust. Hieble v. Hieble, 164 Conn. 56, 63, 316 A.2d 777 (1972). Indeed, in such cases the burden of proof rests on the party denying the trust to negate it by clear and convincing evidence. Id., 62. The trial court was justified, on the basis of the evidence, in treating the shares of stock in the County Federal Savings and Loan Association as being jointly owned by the parties.
*496 In reviewing the amount of the various orders rendered in this case to determine whether they are excessive, an overview of the parties' finances, both before and after the awards, will be helpful. We note at the outset, however, that there are no simple formulae for determining whether distribution of a certain percentage of family assets to one spouse is excessive in any given case. With that in mind, we turn to the data. The plaintiff calculates the total assets of the marriage at $1,797,187. Not included in this total is his interest in the Beatrice Koizim trust, which the plaintiff himself values at $400,000, his $6000 interest in a condominium, and a $10,000 Keogh Retirement Fund. Including these additional items the family asset total is $2,213,187. The defendant, using additional items and different valuations, arrives at a total of $2,519,854.
The plaintiff calculates the value of the assets ordered distributed to the defendant, excluding the periodic alimony, to be about $1,410,000. This total includes the lump sum order valued at $600,000. Since this sum is payable in equal instalments over a period of ten years the $600,000 figure does not accurately represent the true value of this portion of the total award. If one were to discount the lump sum award at an interest rate of 8 percent,[2] the value of the lump sum award at the time of the order would approximate $400,000. Am. Jur. 2d, Desk Book, p. 445. If we deduct the difference of $200,000 and exclude the $55,000 allowance for counsel fees, which we consider separately in this opinion, the total value of the assets distributed to the plaintiff represents 52 percent of the total assets as calculated by the plaintiff and 46 percent of the total *497 assets as calculated by the defendant. Calculated another way, the value of assets transferred and actual payments due during the first year, excluding counsel fees, would be about $858,000. This represents 39 percent of family wealth, according to the figures used by the plaintiff.
The standards for appellate review in dissolution proceedings are the same whether the subject matter is the assignment of property or periodic alimony. Fucci v. Fucci, 179 Conn. 174, 182, 425 A.2d 592 (1979). Taking into account the criteria set forth in General Statutes § 46b-81, the trial court has broad discretion in making an equitable distribution of family assets. Chambliss v. Chambliss, 171 Conn. 278, 279, 370 A.2d 924 (1976). The test is whether the court could reasonably conclude as it did. Aguire v. Aguire, 171 Conn. 312, 314, 370 A.2d 948 (1976).
The plaintiff showed a cash flow annual income of $208,000. The defendant maintained that the correct figure was approximately $250,000 or $233,000 if noncash fringe benefits are eliminated. The defendant's annual income is about $1000, her expenses $85,000. There was evidence that during the marriage the annual expenses were $90,000. If we take into account the financial circumstances of the parties, including the plaintiff's capacity to generate substantial income, and apply the statutory criteria, the trial court's order of periodic alimony and lump sum assignment of property was fair and equitable.
The plaintiff's characterization of the court's property and alimony orders as "outrageously excessive" and "mind boggling" is more pejorative than persuasive. There was evidence that the *498 plaintiff had an annual income of $250,000 and that after distribution he would be left with capital assets worth, on the basis of his own evaluation of the Beatrice Koizim trust, at least $1,700,000. Thus, even if we ignore the plaintiff's major and minor transgressions and look solely at the other statutory criteria, especially the meager capacity of the defendant to enhance her financial situation and the contributions that each spouse made to the marriage, to the accumulation of assets and to the substantial capacity of the plaintiff to generate additional income, the court's orders are neither mind boggling, outrageously excessive nor unreasonable. Because we do not sit at nisi prius in domestic relations matters, of necessity in the overwhelming number of cases we must accord great weight to the trial court which has a distinct advantage "in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant." Fucci v. Fucci, supra, 180-81.
Our refusal to upset the property and alimony awards in this case does not constitute an abdication of our responsibility for appellate review. To the contrary it evidences a recognition on our part that by constitutional charter we are limited to corrections of errors of law; Styles v. Tyler, 64 Conn. 432, 450, 30 A. 165 (1894); and that, therefore, in matters of this sort our role of necessity is not to work the vineyard but rather to prune the occasional excrescence.
POST-JUDGMENT ORDERS
The plaintiff attacks certain orders rendered after the judgment in this case relating to the preservation of security. To secure the obligations *499 imposed by the property division, the court ordered an assignment, as collateral, of the plaintiff's interest in a real estate partnership and the Beatrice Koizim Trust, and a pledge of 180,375 shares of the County Federal Savings and Loan Association stock. On July 19, 1978, the court granted the defendant's ex parte application for a temporary restraining order preventing the plaintiff from divesting or encumbering his interests in the property described above. A permanent injunction to the same effect was issued on August 31, 1978. The plaintiff has attacked these orders on two grounds.
The plaintiff first claims that the referee exceeded the scope of his jurisdictional authority by fashioning equitable orders after judgment had been rendered. A referee's power derives from General Statutes § 52-434,[3] which allows a referee to "exercise the powers of the superior court in respect to trial, judgment and appeal...." This grant of authority necessarily embraces the power to render such orders as may be required to protect the integrity of the original judgment. That the orders were equitable in nature does not alter this conclusion because a referee has the same powers as the referring court. General Statutes § 52-434; Prince v. Sheffield, 158 Conn. 286, 291, 259 A.2d 621 (1969). See Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975). The plaintiff's reliance on Practice Book, 1978, § 458, which reserves to the referring court jurisdiction to hear and decide pendente lite or contempt matters, is misplaced *500 because these orders related to a property division; they were not pendente lite orders. See Stern v. Stern, 165 Conn. 190,196,332 A.2d 78 (1973).
The other infirmity asserted by the plaintiff respecting the post-judgment orders is that they were inappropriately granted ex parte and, further, that this ex parte contact between defendant's counsel and the referee tainted the factfinding process. The defendant's application, supported by an affidavit, alleged that the plaintiff had arranged to borrow $600,000 from the Beatrice Koizim Trust, assigning as collateral his interest in S & K Associates. This action directly contravened the court's directive, set out in its memorandum of decision, that the plaintiff's interest in these assets not be encumbered or divested. Under these circumstances we cannot say that the court abused its discretion in issuing a temporary restraining order. See General Statutes § 52-473; Phoenix Ins. Co. v. Carey, 80 Conn. 426, 431, 68 A. 993 (1908). With respect to the ex parte contact, which consisted of a telephone conversation in which permission was sought to submit an application for the restraining order discussed above, it was entirely proper. Such contact is required in order to obtain an ex parte restraining order. As such it is contemplated by § 52-473 and does not offend the Code of Professional Responsibility, DR 7-110 (B). The subsequent rulings of the court were not "tainted" by this contact because the merits of the pending motions were never discussed.
COUNSEL FEES
The plaintiff quite properly challenges the trial court's award of counsel fees and expenses. Counsel fees are not to be awarded merely because the *501 obligor has demonstrated an ability to pay. "Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds. Krasnow v. Krasnow, 140 Conn. 254, 265, 99 A.2d 104 (1953); Steinmann v. Steinmann, 121 Conn. 498, 504, 186 A. 501 (1936)." Ridolfi v. Ridolfi, 178 Conn. 377, 380, 423 A.2d 85 (1979). In making its determination regarding attorney's fees the court is directed by General Statutes § 46b-62 to consider the respective financial abilities of the parties. Murphy v. Murphy, 180 Conn. 376, 380, 429 A.2d 897 (1980). Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. Because the defendant had ample liquid funds as a result of the other orders in this case, there was no justification for an allowance of counsel fees.
There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except as modified in accordance with this opinion.
In this opinion the other judges concurred.
NOTES
[1] The court clearly was justified in concluding that a confidential relationship existed. In addition to being the defendant's husband, the plaintiff was a banker and a lawyer. The defendant was accustomed to being guided by his judgment and was justified in placing confidence in him in the reasonable belief that he was acting in her best interest. See Harper v. Adametz, 142 Conn. 218, 225, 113 A.2d 136 (1955); Worobey v. Sibieth, 136 Conn. 352, 359, 71 A.2d 80 (1949).
[2] There was evidence that the interest on the promissory note to City Trust was 8.5 percent.
[3] General Statutes § 52-434 provides in part as follows: "The superior court may, with the written consent of the parties or their attorneys, refer any case pending before such court in which the issues have been closed to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in such case."
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291 Pa. Super. 209 (1981)
435 A.2d 872
COMMONWEALTH of Pennsylvania,
v.
Milton QUACKENBUSH, Appellant.
Superior Court of Pennsylvania.
Argued June 11, 1980.
Filed September 25, 1981.
*210 *211 John Kocsis, Athens, for appellant.
Leonard Frawley, District Attorney, Towanda, for Commonwealth, appellee.
Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
CAVANAUGH, Judge:
The defendant appeals from an order directing his extradition to New York. He argues, one, that his confinement in jail for more than thirty days without a hearing to extend his confinement violated the Uniform Criminal Extradition Act, 42 Pa.C.S.A. §§ 9136, 9138; and, two, that the Commonwealth failed to establish that the defendant was the person sought by New York for extradition. We affirm.
On November 5, 1979, the defendant was imprisoned in Bradford County in lieu of $10,000 bail on charges of rape, involuntary deviate sexual intercourse, indecent assault, and terroristic threats. Sometime before December 19, a detainer from New York was lodged against him. This detainer is *212 dated November 16, 1979 by the New York authorities, but the date that it was received by the Bradford County authorities does not appear on the record. On December 19 the Pennsylvania charges which were pending against the defendant were "dismissed by the district attorney" before the preliminary hearing on those charges was to be held.
On December 20 the defendant filed a petition for a writ of habeas corpus; and the lower court issued the writ and ordered a hearing for the next day. Later on December 20 based upon the detainer a complaint was filed charging the defendant with being a fugitive from justice. A preliminary arraignment was held that same day and in lieu of bail the defendant was held in confinement.
At the habeas corpus hearing on December 21 the defendant contended that he was illegally confined from the time the local charges had been dismissed on December 19 until the time the writ of habeas corpus was issued on December 20. The lower court denied the petition for a writ of habeas corpus.
On January 7, 1980 defendant filed his second petition for a writ of habeas corpus. A hearing was held on this matter on January 15, 1980. The defendant contended that in contravention of 42 Pa.C.S.A. § 9136 he was held for more than thirty days. On January 18, 1980 the Commonwealth filed a petition to continue the defendant's confinement pending receipt of the extradition paper; a hearing was held on this petition on January 21, 1980. On January 25 the lower court denied the petition for habeas corpus and granted the Commonwealth's petition to continue the defendant's confinement.
On February 8 after an extradition hearing was held and the Governor's warrant was served, the lower court ordered the defendant to be extradited. The lower court refused to stay its order, but this court granted a stay pending appeal.
Under the Uniform Criminal Extradition Act an accused may be committed to jail for up to thirty days to allow his arrest on Governor's warrant pursuant to a request *213 by the demanding state. 42 Pa.C.S.A. § 9136. If the accused is not arrested under the Governor's warrant within the initial thirty day period, he may be recommitted for a further period not to exceed sixty days. 42 Pa.C.S.A. § 9138. Although the statute, 42 Pa.C.S.A. § 9138, does not expressly require a hearing before an accused may be recommitted for another period of up to sixty days, our case law has imposed such a requirement. See Commonwealth ex rel. Colbert v. Aytch, 246 Pa.Super. 278, 369 A.2d 1321 (1976) affd. 478 Pa. 314, 386 A.2d 950 (1978); Commonwealth v. Murphy, 236 Pa.Super. 37, 344 A.2d 662, 664 (1975), allocatur denied. Furthermore, even though the alleged fugitive may already be in custody on other charges, the lodging of a detainer commences the period under the Uniform Criminal Extradition Act.[1]Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974).
Instantly the defendant argues that he should be discharged because the Commonwealth's petition to extend the defendant's confinement was not filed within thirty days of the time the detainer was lodged. The record is not clear as to when the detainer was lodged with the Bradford County authorities. The record does show that the detainer was signed by New York authorities on November 16, 1979. However, the Bradford County warden did not know the exact date it was received; he could only testify that it was received "within a very short space of time" after November 16, 1979. N.T. January 15, 1980, 2. Because of the indefinite nature of the evidence on this matter the lower court judge found that it was filed before December 19, 1979. Lower Court Order January 25, 1980. For purposes of analysis we will assume that the detainer was filed with the Bradford County authorities on November 17, 1979. Thus the initial thirty day period would elapse on December 17, 1979. By December 17, 1979 no hearing had been held to extend the defendant's confinement. However, on December 20 the defendant was arraigned and on December 21 in *214 response to defendant's petition for habeas corpus, a hearing was held. In our view that hearing satisfied our case law requirement that a hearing be held to recommit the defendant for a further period of up to sixty days.
Title 42 Pa.C.S.A. § 9138 provides:
If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or issuing authority may discharge him or may recommit him for a further period, not to exceed 60 days, or a judge or issuing authority may again take bail for his appearance and surrender, as provided in section 9137 (relating to bail), but within a period not to exceed 60 days after the date of such new bond.
Thus under 42 Pa.C.S.A. § 9138 if an accused is not arrested under a Governor's warrant, the judge or issuing authority may discharge him, recommit him, or continue his bail.
At the habeas corpus hearing held on December 21 defense counsel was present. The hearing disclosed that the defendant had been held in jail since November 5 on local charges of rape, involuntary deviate sexual intercourse, indecent assault and terroristic threats; that these charges were dismissed on December 19; and that on December 20 defendant was arraigned on charges of being a fugitive from justice based on information which was received from New York authorities before December 19. During the hearing defense counsel moved to reduce bail.
Thus at the hearing held on December 21, the judge knew the period of time the defendant had spent in jail, the reasons for his confinement, and that he had been arraigned on a charge of being a fugitive from New York based on information received from New York. It was clear that the defendant had not yet been arrested on a Governor's warrant. Moreover, the judge considered whether to discharge the defendant, continue his confinement or reduce his bail. Because of the evidence adduced at the hearing and the judge's awareness of the available alternatives, i.e., discharge, continued confinement, and reduction of bail, we *215 hold that the hearing of December 21 satisfied the requirement that a hearing be held to recommit the defendant. Moreover we hold that although, as we have assumed above, the hearing may not have been held within thirty days of the time the detainer was lodged, since it was held at the latest within thirty-four days of the time the detainer was lodged, the defendant may not be discharged for lack of a timely hearing. We so hold because as in other cases there has been substantial compliance with the Uniform Criminal Extradition Act. Commonwealth ex rel. Osburn v. Haas, 439 Pa. 341, 268 A.2d 85 (1970); Commonwealth ex rel. Myers v. Case, 250 Pa.Super. 242, 378 A.2d 917 (1977); Commonwealth ex rel. Simpson v. Aytch, 247 Pa.Super. 348, 372 A.2d 861 (1977); Commonwealth v. Murphy, 236 Pa.Super. 37, 344 A.2d 662 (1975) allocatur denied.
In Commonwealth ex rel. Myers v. Case, supra, the lower court discharged the accused because the Governor's warrant had not been served within ninety days, the maximum time for confinement under the Uniform Criminal Extradition Act. 42 Pa.C.S.A. §§ 9136, 9138. On appeal this court reversed and ordered extradition. The accused had been arrested on local charges and was subsequently charged with being a fugitive from justice. He was arrested and arraigned on the fugitive charge and New Jersey lodged a fugitive detainer against him with Pennsylvania authorities. A Governor's warrant was received within the ninety day period, but since the accused was serving a sentence on the local charges at that time, the warrant was not executed. After the accused was paroled, however, the Governor's warrant was executed; this was fifteen days after the ninety day period had elapsed. In reversing the lower court we stated:
it is apparent that the Commonwealth's failure to execute the Governor's Warrant was not an "oversight." The Commonwealth deliberately failed to act until after the relator had been paroled on his local sentence. However, the execution of the Governor's Warrant still occurred within fifteen days after the expiration of the ninety day *216 period. Certainly, in view of the safeguards afforded the relator, this violation of the Act can only be classified as technical.
Commonwealth ex rel. Myers v. Case, supra 250 Pa.Super. at 248, 378 A.2d at 920 (footnote omitted). We also stated that "technical or formal objections will not invalidate an extradition proceeding" and that substantial compliance with the statute would be sufficient. Id., 250 Pa.Super. at 246, 378 A.2d at 919.
Thus, Myers permitted extradition even though the Governor's warrant was executed fifteen days beyond the maximum ninety day period provided by statute. Unlike Myers the instant case does not involve a period beyond the maximum ninety day period rather it involves four days beyond the initial thirty day period provided by statute. Since Myers permitted extradition fifteen days after the maximum period had elapsed, we hold that the lapse of four days after the initial statutory period does not bar extradition under the circumstances of the instant case. This is especially true since under other circumstances we have permitted extradition when the 42 Pa. C.S.A. § 9138 hearing was held two days beyond the initial thirty day period. Commonwealth v. Murphy, 236 Pa.Super. 37, 344 A.2d 662 (1975) allocatur denied (involving 19 P.S. § 191.17, the predecessor to 42 Pa. C.S.A. § 9138).
We recognize that there are cases which have refused to allow extradition when the statute has not been complied with. Those cases, however, are different from the instant case. For example in some cases more than ninety days had elapsed before there was even an arraignment on the fugitive charges. Commonwealth v. Hude, 483 Pa. 489, 397 A.2d 772 (1979) (defendant had not been arraigned, see Superior Court opinion, 242 Pa.Super. 555, 364 A.2d 413, 419 (1976)); Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974); Commonwealth ex rel. Coffman v. Aytch, 238 Pa.Super. 584, 361 A.2d 652 (1976); Commonwealth v. Woods, 229 Pa.Super. 473, 326 A.2d 626 (1974). In Commonwealth v. McCaine, 218 Pa.Super. 274, 275 A.2d 867 (1971), more than sixty-three days had elapsed before any type of *217 hearing was held and since the hearing required by the existing statute 19 P.S. § 191.14 (now 42 Pa. C.S.A. § 9135) had not been held the extradition order was reversed.
Additionally we note that even if the defendant should have been released from custody for lack of an extension hearing under 42 Pa. C.S.A. § 9138 within thirty days, the defendant could still be extradited pursuant to a Governor's warrant. Commonwealth ex rel. Berry v. Aytch, 253 Pa.Super. 312, 317, 385 A.2d 354, 356 (1978); Commonwealth ex rel. McCaine v. Gedney, 237 Pa.Super. 499, 500, 352 A.2d 72, 73 (1975); Commonwealth ex rel. Douglass v. Aytch, 225 Pa.Super. 195, 310 A.2d 313 (1973); Uniform Criminal Extradition and Rendition Act, § 2-104, 11 Uniform Laws Annotated (1981 pocket supplement).
Defendant also argues that the Commonwealth failed to properly identify him as the subject charged with a crime in the demanding state. In Commonwealth v. Rowe, 264 Pa. Super. 67, 398 A.2d 1060 (1979), we stated:
in every extradition proceeding "the relator has an absolute right to require that his identity as the person named in the Extradition Requisition be established and proved by the weight of credible evidence." Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 136, 228 A.2d 742, 744 (1967). Because the guilt or innocence of the accused is not in question, however, Commonwealth ex rel. Edgar v. Davis, supra, the Commonwealth's burden is not measured against the "beyond a reasonable doubt" standard, but merely against the "preponderance of the evidence" standard. "[C]ompetent evidence to establish reasonable ground is not necessarily evidence sufficient to convict, nor only such as can pass technical rules governing the admissibility of evidence in criminal trials." United States ex rel. Vitiello v. Flood, 374 F.2d 554, 557 (2d Cir. 1967), quoting United States ex rel. Klein v. Mulligan, 50 F.2d 687, 688 (2d Cir. 1931).
Id., 264 Pa.Super. at 70, 398 A.2d at 1061-62.
Moreover, in Commonwealth v. Kulp, 225 Pa.Super. 345, 310 A.2d 399 (1973) allocatur denied, we stated:
*218 Given the summary nature of interstate rendition proceedings, an accused is not entitled to receive the full panoply of procedural protections normally accorded to a defendant in a criminal trial. United States ex rel. Vitiello v. Flood, 374 F.2d 554, 557 (2 Cir. 1967); Luker v. Koch, 489 P.2d 191 (Colo.Sup.Ct., 1971); Commonwealth v. Glavin, 354 Mass. 69, 235 N.E.2d 547 (1968). Thus, statements allegedly given by the subject of an extradition proceeding in violation of his constitutional rights, United States v. Flood, supra, and evidence which has allegedly been illegally seized. Martin v. Maryland, 287 A.2d 823, 828 (D.C.Ct.Apps. 1972) may be introduced at an extradition hearing. Courts in asylum states will not consider issues which are best raised at trial. Martin v. Maryland, supra. This does not mean that constitutional violations are to be ignored at an extradition proceeding. The manner in which evidence has been obtained will have a bearing on the weight which the court accords to it in an extradition proceeding. See United States v. Flood, supra, 374 F.2d at 558.
Id., 225 Pa.Super. at 348, 310 A.2d at 400.
We have also permitted hearsay testimony in extradition proceedings. Commonwealth ex rel. Pizzo v. Aytch, 273 Pa.Super. 55, 60, 416 A.2d 1086, 1089 (1979); Commonwealth v. Rowe, supra; Commonwealth v. Murphy, supra.
Instantly, the Commonwealth presented only one witness, a New York detective, to prove the defendant was the subject charged with a crime in the demanding state; no testimony was presented by the defense. The witness testified that the victim identified the defendant in his presence, that the victim selected the defendant's photograph from a group of eight photographs and that the defendant admitted that on the relevant date he was in the area in which the victim alleges the incident had occurred. Defendant argues that when the witness identified the defendant, he did so in response to a suggestive question by the district attorney. *219 Although it is true that the district attorney's question was suggestive, we do not agree, as the defendant contends, that it tainted the witness's testimony. We find that the witness's testimony was supported by his first hand knowledge of statements made by the defendant and the victim and by the photographs selected by the victim; it was not the product of the district attorney's suggestive question.
The defendant's argument that the victim's identification of the defendant in person and through the photographs was impermissibly suggestive is not persuasive, in light of the defendant's statements to the witness and in light of the Commonwealth's burden to prove identity only by a preponderance of the evidence.
Finally the defendant's argument that the Commonwealth's evidence is somehow insufficient since it did not choose to have the victim testify although she was in a room adjacent to the courtroom has no merit. As we have previously stated in this opinion, hearsay testimony is admissible. Commonwealth ex rel. Pizzo v. Aytch, supra; Commonwealth v. Rowe, supra; Commonwealth v. Murphy, supra. Moreover, we have previously held hearsay testimony was properly considered even though the hearsay declarant was in the vicinity of the courtroom. Commonwealth v. Rowe, supra, 264 Pa.Super. at 72 n.2, 398 A.2d at 1062 n.2. Thus, we conclude that the evidence was sufficient to prove the defendant was the subject charged with a crime in the demanding state.
Order of the lower court ordering extradition is affirmed. The Superior Court's supersedeas order is hereby vacated.
HESTER, J., files a dissenting statement.
HESTER, Judge, dissenting:
I respectfully dissent for the reasons set forth in my Dissenting Opinion in the case of Commonwealth ex rel. *220 Lewis Quackenbush v. Warden of the Bradford County Jail, (J. 1251/80), 291 Pa.Super. 358, 435 A.2d 1266 (1981).
NOTES
[1] In the lower court the Commonwealth argued that the statutory period commences when the defendant was brought before the magistrate on the fugitive warrant.
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180 N.J. Super. 440 (1981)
435 A.2d 562
CALDWELL-WEST CALDWELL EDUCATION ASSOCIATION, CHARGING PARTY-APPELLANT AND CROSS-RESPONDENT,
v.
CALDWELL-WEST CALDWELL BOARD OF EDUCATION, RESPONDENT-RESPONDENT AND CROSS-APPELLANT, AND PUBLIC EMPLOYMENT RELATIONS COMMISSION, RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued February 10, 1981.
Decided August 7, 1981.
*442 Before Judges BOTTER, KING and McELROY.
Gerald M. Goldberg argued the cause for appellant (Goldberg & Simon, attorneys; Gregory T. Syrek, on the brief).
Lois M. Van Deusen argued the cause for respondent Board of Education (McCarter & English, attorneys; Federick B. Lehlbach, of counsel).
Sidney H. Lehmann, General Counsel, PERC, attorney for respondent PERC (Don Horowitz, Deputy General Counsel, on the brief).
The opinion of the court was delivered by BOTTER, P.J.A.D.
The Caldwell-West Caldwell Education Association (Association) appeals from a decision and order of the Public Employment Relations Commission (PERC) and the Caldwell-West Caldwell Board of Education (Board) cross-appeals.
The issues on the Association's appeal concern PERC's disposition of counts I, III and IV of the Association's amended unfair practice charge filed with PERC. Count I contains the charge that, commencing on September 1, 1976, the Board improperly increased the work hours and workload of seventh grade "CORE" teachers without negotiation. Count III charged the improper, unilateral elimination of a free period from the schedule of the Audio-Visual Aids Coordinator (the AV coordinator) commencing September 1, 1976. Count IV charged the improper reduction of employment and salary, from four weeks to two weeks, of the Cooperative Industrial Education Coordinator (the CIE coordinator) in the summer of 1976. With respect to count III, the Association contends that PERC erred in failing to make a monetary award for what PERC found to be the improper *443 removal of a free period from the schedule of the AV coordinator. The cross-appeal challenges PERC's conclusion that elimination of this free period without prior negotiation was an unfair labor practice in violation of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., N.J.S.A. 34:13A-5.3 and 5.4(a)(5).
We deal first with the issue concerning the change in teaching schedule for the seventh grade CORE teachers commencing September 1, 1976. The CORE educational program for seventh grade students was instituted around 1969. It was designed to ease the transition from the elementary school single teacher format to the high school departmentalized teaching format. The CORE program was a modified departmentalized system for seventh grade students that paired English and social studies as one block for 1 3/4 hours, and science and math in another similar block. The teachers of the separate instructional blocks worked together as a team to provide greater integration of subject matter and instructional flexibility. From 1971 to 1976 teachers in the CORE program were a relatively stable group with little turnover. CORE teachers during these years carried a uniform schedule of daily classroom instruction of 14 mods, 7 mods for each of the two instructional classes, plus at least 2 mods of supervisory duty and other mods of emergency coverage and preparation time. A "mod" refers to a 15-minute module of time for scheduling purposes. The workday for all teachers consisted of 24 mods (six hours), including a 2-mod (1/2 hour) duty-free lunch period. In addition to daily classroom instruction, teachers were assigned supervision of students in homeroom, lunchroom or study hall, emergency assignments primarily consisting of covering for absent or indisposed teachers, and nonsupervisory duties such as administering attendance records or school accounts. Some free time was also afforded which could be used for preparing and grading assignments, conferring with other teachers, as well as a teacher's personal affairs. Salary schedules were determined according to the length of service in the district as well as the number of graduate credits *444 and degrees earned, but did not depend upon professional assignments during the course of the workday.
On March 30, 1976, the Board voted to eliminate the foreign language program that had been taught previously to seventh grade and eighth grade students. The change was to become effective in the new school year beginning September 1, 1976. Reasons cited for the change included a budget defeat, which resulted in a reduction of teaching force, as well as educational considerations, since the desirability of the program had been questioned over the years. Because of the elimination of foreign language instruction, a 30-minute or 2-mod block of time became available in the schedule of each seventh grade student. The Board left it to the administrators of the junior high school to determine how to absorb this instructional time.
On April 8, 1976 the junior high school principal met with CORE teachers and advised them that there were several alternatives for using this time, namely, additional instruction time, study period time, a longer lunch period or a shorter school day. Of these the principal stated that he chose the most advantageous educational alternative by assigning one additional mod to reading and one to math within the existing CORE blocks. In exchange for increasing by two mods instructional class time for CORE teachers, two mods of lunchroom duty, i.e., cafeteria supervision, would be eliminated from their schedules. No new subjects were assigned to the CORE teachers, nor was the overall length of the day increased, and the 16 mods of in-class instruction fell within the 14- to 18-mod parameters established as the permissible, general workload. There was testimony that the course content did not increase but that the extension of each CORE block of time by 15 minutes increased the amount of work required by a teacher in terms of preparation for classroom instruction and paper work to the extent that the 15-minute increase in classroom time could result in more student papers to be read and graded.
*445 As a result of the proposed reduction in teaching staff, the elimination of the foreign language program and the claim of increased workload, the Association asked the Board to meet and negotiate these effects. The Board agreed to meet and discuss the effects of the reduction in work force, but refused to negotiate these effects. A meeting was held on May 10, 1976, at which time demands were made on behalf of the teachers to negotiate the contemplated changes. Negotiation was refused by the Board's representative because the school day was not lengthened and teachers were expected to perform within the existing mod structure which allowed for 14 to 18 assigned mods of instructional time a day. The meeting terminated without agreement on the Association's demands.
A few days before the meeting, CORE teachers filed a formal grievance over the unilateral increase in teaching time. This grievance was rejected by the Board in June 1976. The issue went to arbitration, but the arbitrator concluded that the issue was not arbitrable under the existing collective bargaining agreement. Accordingly, the Association sought relief in the PERC proceedings which led to this appeal.
The parties had entered into a collective agreement or contract for the 1975-1976 school year. Negotiations for a new collective agreement to succeed the one expiring on June 30, 1976 commenced in the fall of 1975. There is evidence in the record that during these negotiations the Association sought the assignment of personnel other than teachers for nonteaching duties and the elimination of cafeteria supervision, with this duty to be assumed by the employment of aides. The Association also sought to prevent the reduction in teaching staff and to provide certain rights for tenured and nontenured teachers in the event of such a reduction. A new agreement was reached on June 14, 1976 for the 1976-1977 school year, but none of the foregoing demands were incorporated in that agreement. The agreement was the outcome of negotiation sessions that were held as late as May and June of 1976. After arbitration of their grievance failed to satisfy the seventh grade CORE teachers, an *446 unfair practice charge was filed with PERC on December 27, 1976. An amended unfair practice charge was filed thereafter, in October 1977. Hearings commenced before a hearing examiner in January 1978 and were held intermittently until they concluded in September of that year. Briefs were thereafter filed, the hearing examiner issued a Recommended Report and Decision, exceptions were filed, and the matter was thereafter argued before PERC.
Disagreeing with the hearing examiner's recommendations, PERC ruled as a matter of law that the increase in workload for seventh grade CORE teachers found by the hearing examiner was a direct result of the reduction in force and elimination of the foreign language teacher for the 1976-1977 school year, and, accordingly, since the reduction in force was a managerial prerogative, the impact thereof was not negotiable. In support of that decision PERC cited In re Maywood Bd. of Ed., 168 N.J. Super. 45, 58 (App.Div.), cert. den. 81 N.J. 292 (1979). This decision antedated Woodstown-Pilesgrove Bd. of Ed. v. Woodstown-Pilesgrove Ed. Ass'n, 81 N.J. 582 (1980).
In Woodstown-Pilesgrove, the court held that if the dominant issue concerns an educational goal, it falls within the managerial prerogatives of a board of education and "there is no obligation to negotiate and subject the matter, including its impact, to binding arbitration." Id. at 591. The court stated:
It is only when the result of bargaining may significantly or substantially encroach upon the management prerogative that the duty to bargain must give way to the more pervasive need of educational policy decisions. [Id. at 593]
The dispute in Woodstown-Pilesgrove concerned two additional hours that the school teachers were required to work on the day before Thanksgiving. Previous past practice called for dismissing teachers and students at 1 p.m. on the day before Thanksgiving. The new calendar called for a school day ending at 3 p.m. The Board sought to impose the change during the school year. Thus, the question concerned payment for the additional hours of work required by this extension of one day before a holiday. In these circumstances the court found no "particularly *447 significant educational purpose" involved; it held that "the budgetary consideration being the dominant element, it cannot be said that negotiation and binding arbitration of that matter significantly or substantially trenched upon the managerial prerogative of the board of education." 81 N.J. at 594.
In the case at hand, the elimination of two mods a day of language instruction and the substitution of one mod of reading and one mod of math a day were unquestionably matters of educational policy falling entirely within the prerogatives of the Board. Accepting this, the Association argues that the change in teaching assignments by adding two mods of instruction a day could not be effected without prior negotiation since it changed a preexisting practice. The Association also contends that removing two mods of cafeteria supervision was not sufficient compensation for the increased workload.
In the circumstances of this case we conclude that the board of education did not engage in an unfair labor practice by failing to negotiate this change in teaching assignments. We note that the change in assignments did not include the lengthening of the school day and did not extend the teaching obligation of seventh grade CORE teachers beyond the 14- to 18-mod range which was common practice for all other teachers. Although the hearing examiner found that the separate practice established for CORE teachers could be considered independently of all other teachers, we do not find this a sufficient basis for limiting the flexibility and discretion that a board of education must have in shaping educational policies and fulfilling its educational obligations. The Board must have some flexibility in making managerial decisions. The concept of preexisting practices should not be so rigidly adhered to as to require negotiation of every minute deviation. Unless there is room in the joints for modification and adaptation necessary to make the system work, educational machinery would become stalled in endless dispute, grievance procedures, arbitration, unfair labor practice charges, hearings, reviews, and appeals. Here the issue *448 was whether a block of seven mods set aside for math and science and a like block of time set aside for English and social studies could each be extended one mod or 15 minutes a day in exchange for equivalent mods of cafeteria supervision duty. Being inspired primarily by an educational objective, a board of education should have sufficient discretion to make this change without prior negotiations so long as the change is not unduly burdensome.
Without some measure of flexibility constant battles would be waged over every change in format, with each change viewed as an opportunity to extract more concessions. Such disputation is especially unfortunate in this case since the parties were negotiating a general agreement for the year in which these changes occurred. Contemplated changes should be part of the group of proposals bundled together into one agreement, which in this case was reached in June 1976. In this respect the Board, in our view, was also remiss in standing on the proposition that the two mods change in instruction time could be discussed but not negotiated. Working hours are generally negotiable, Englewood Bd. of Ed. v. Englewood Teacher's Ass'n, 64 N.J. 1, 7-8 (1973), and the burdens of working should normally be considered a term and condition of employment. See In re Byram Tp. Bd. of Ed., 152 N.J. Super. 12 (App.Div. 1977). It is difficult to draw the line between a mandatorily negotiable effect of educational policy and those that are not negotiable. The presumption should be in favor of negotiating a change in working duties, and resolution of this disputed change should then be integrated in the agreement. The purpose of a new contract should be to package all pending changes in burdens and benefits. Fringe, residual disputes should not be maintained in orbit as in this case. The goal of the Employer-Employee Relations Act was to foster labor peace by compelling negotiation. N.J.S.A. 34:13A-2; cf. Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass'n of Ed. Sec'ts, 78 N.J. 1, 16 (1978). Looking at the flood of grievances, arbitration, PERC proceedings and litigation it has spawned one wonders whether it has not inspired *449 more disputes by increasing the arsenal of weapons for waging legal battles.
Thus, we are impelled to rule that a change from preexisting practice which is directly related to an educational purpose should not be measured by caliper and micrometer. Boards of education must be given some room to manage between contracts without being forced to bargain over every move they make. There must be some rounding of the edges of contention. The business of providing education is not an assembly line operation with productivity measured in discrete product units for which an exact exchange of compensation can be given. Cooperation of both sides is needed to fulfill the public trust of educating the children of this state in the time that runs from collective negotiation agreement to collective negotiation agreement. Disputes of a relatively minor nature arising in the interim must be quelled, and the aggregate of minor grievances should be resolved by compensatory across-the-board allowances in the next contract.
The next unfair labor practice to be considered is the unilateral increase from 12 to 15 teaching mods assigned to the person who also held the extra-duty or extra-curricular position of Audio-Visual Aids Coordinator. There were many extra-curricular assignments in the junior high school. These were assumed or bid for voluntarily by the teachers on an annual basis, except that a teacher who had served satisfactorily in a position would normally be continued in the position until he or she wanted to give it up. The collective agreement provided extra compensation for each of the positions, the rates having been negotiated as part of the agreement.
In April 1971 Alan Davenport was offered the position of AV coordinator. The duties included storage of equipment, delivering and setting up the equipment in classrooms on request, requisition of equipment and software, providing information to teachers on free film availability, making minor repairs, keeping an inventory, etc. When offered the position Davenport was *450 told that he would have no cafeteria or homeroom duty and that, aside from his preparation period, he would have one other free period presumably for the performance of his A.V. duties. Thus, his instruction time was reduced from 15 mods to 12 mods for the 1971-1972 school year. This schedule continued through the 1975-1976 school year. In May 1976 Davenport was informed that his classroom teaching schedule was being increased from 12 to 15 mods, effective September 1976, the three additional mods replacing one free period in his schedule. No special salary adjustment was made for the extra-curricular position of AV coordinator in the contract for the 1976-1977 year. However, prior thereto, in May 1976, Davenport filed a formal grievance over the unilateral increase in teaching time. This grievance was rejected by the Board and went to arbitration. Arbitration failed to settle the dispute because the issue was found nonarbitrable under the collective agreement. The issue, then, was included in count three of the unfair practice charge filed with PERC.
There is a dispute as to the fairness of requiring the AV coordinator to carry a 15-mod teaching schedule. There was evidence that Davenport's predecessors carried 15- and 16-mod schedules, but there was also evidence that there were equipment increases and increases in responsibility during the years that Davenport held the position. The hearing examiner and PERC held that the governing practice would be measured during the years Davenport held the position and that any unilateral change in practice could not be made without prior negotiation. We disagree with this conclusion. The 15-mod teaching assignment was within the normal 14- to 18-mod range applicable to all teachers. Before accepting the AV coordinator's position for the 1976 school year, Davenport was informed of the new teaching schedule. He was not compelled to accept the position at the additional stipend provided in the collective agreement. Alternatively, if he intended to continue in the position, his representatives should have attempted to negotiate a higher additional stipend as part of the agreement rather than *451 simply file a grievance. Notwithstanding the dispute, Davenport signed a memorandum agreeing to perform as AV coordinator for the 1976-1977 year at $480 in addition to his normal compensation. We note, also, that there is no fixed amount of time required for the performance of the duties.
Having concluded that the Board did not commit an unfair practice in regard to the teaching assignment of the AV coordinator, we find in favor of the Board on its cross-appeal. This makes it unnecessary for us to consider the Association's contention on its appeal that PERC erred in failing to award Davenport compensatory damages for the time he spent in performing his new responsibilities. We note parenthetically that Davenport resigned from his position in late September 1976 for reasons not material here, and we would normally support PERC's discretion in denying a compensatory award for the short time involved. Cf. the Galloway Tp. case, supra, 78 N.J. at 16.
The last issue concerns PERC's holding that the Board did not have to negotiate a reduction in working time for summer employment offered to the CIE coordinator in 1976.
John Antolick had held the position of CIE coordinator since 1968. For each summer thereafter, including the summer of 1975, Antolick was employed for four weeks and was paid at the rate of one-tenth of his contractual salary for the ensuing year. His duties included visiting students on their jobs, counseling new students and visiting current and prospective employers. Each summer from 1968 to 1975 there were 10 to 12 students enrolled in the Cooperative Industrial Education program. However, only three students enrolled for the summer of 1976. Accordingly, Antolick was offered a two-week contract for that summer. Antolick filed a grievance and an arbitration hearing was held. The grievance was found to be arbitrable but was rejected on the merits since the reduction in the scope of summer employment was found to be analogous to layoff for lack of work in the private sector and thus within the Board's *452 management prerogative to reduce Antolick's summer work in light of the drastically reduced student enrollment. Notwithstanding the arbitration, the issue was presented to PERC. The Association's position was accepted by the hearing examiner who held that the arbitrator's decision was repugnant to the Employer-Employee Relations Act since it constituted a reduction of the length of the work year that could not be done without prior negotiation. PERC rejected this interpretation. PERC held that the CIE coordinator "was hired anew each summer for the program," and that decisions as to the "extent of the program and determinations as to hiring are totally for management and non-negotiable." We agree and affirm substantially for the reasons given by PERC. To say that the teacher must be hired for four weeks in the summer when his work could be done in two weeks because of the reduction in participating students would frustrate the essential duty of school boards to spend public funds wisely.
PERC's order with regard to counts one and four of the amended unfair practice charge is affirmed; that part of its order that deals with the teaching duties of the AV coordinator which was the subject of count three in the Board's cross-appeal is reversed and set aside. PERC's application for enforcement of its order in relation to count three is, therefore, denied.
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525 S.W.2d 238 (1975)
John B. CAUDLE, Appellant,
v.
SHERRARD MOTOR COMPANY, Appellee.
No. 18587.
Court of Civil Appeals of Texas, Dallas.
June 19, 1975.
Rehearing Denied July 7, 1975.
Ed Walts, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant.
Tom J. Stollenwerck, Touchstone, Bernays & Johnston, Dallas, for appellee.
AKIN, Justice.
The question on this appeal is whether the risk of loss of a house trailer had passed from the seller, Sherrard Motor Company, *239 to the buyer, Caudle, under Tex.Bus. & Comm. Code Ann. § 2.509 (Tex.UCC 1968) before the house trailer was stolen from the seller's premises.
The relevant facts are undisputed. On February 10, 1972, plaintiff Sherrard Motor Company and defendant John Caudle entered into a contract for the purchase of a house trailer. It provided for a cash down payment of $2,685 and a balance of $4,005 in the form of a note payable to Sherrard. This contract was assigned with recourse to the Citizens National Bank of Denison, Texas, by Sherrard on the date executed. While Sherrard was making the trailer ready for the defendant, Caudle received a telephone call from his business office advising that he should return immediately to Dallas. Since the trailer was not ready, Caudle told Sherrard that he would return later to Denison and take possession of the trailer. Before Caudle returned and sometime between February 12 and 14, 1972, the house trailer was stolen from plaintiff's place of business. Upon learning of the theft, Caudle stopped payment on the check he had given Sherrard as down payment for the trailer. Sherrard then sued Caudle on the contract of sale for the contract price.
In answer to special issues, the jury found that a contract had been entered into between the parties; that Caudle breached the contract; and that Sherrard sustained no damage as a result of the breach by Caudle. The trial court, upon motion by Sherrard, entered a judgment non obstante veredicto in Sherrard's favor in the sum of $6,285.70. Caudle appeals from this judgment.
Caudle argues that the trial court erred in failing to grant Caudle's motion for an instructed verdict because there is no evidence that the contract was breached by Caudle. We agree. We hold that the contract failed as a matter of law for want of consideration since the trailer was stolen Before the risk of loss under Tex.Bus. & Comm.Code Ann. § 2.509 (Tex.UCC 1968) had passed to Caudle. We, therefore, reverse and render the judgment of the trial court.
In making this determination, we were presented with three principal questions. First, had the risk of loss passed to the buyer, Caudle, before the trailer was stolen, because the trailer was held by a bailee, Sherrard, to be delivered without being moved pursuant to Tex.Bus & Comm.Code Ann. § 2.509(b) (Tex.UCC 1968)? Secondly, did the contract provide that the risk of loss passed on Caudle when the contract was signed by the parties under Tex.Bus. & Comm.Code Ann. § 2.509(d) (Tex.UCC 1968)? Thirdly, had the risk of loss remained with the merchant-seller, Sherrard, because the trailer was stolen before the purchaser, Caudle, had taken actual physical possession of the goods pursuant to Tex. Bus. & Comm.Code Ann. § 2.509(c) (Tex.UCC 1968)? We answer questions one and two in the negative and question three in the affirmative.
It is plaintiff's contention that the risk of loss had passed to the defendant before the trailer's disappearance under § 2.509(b)(2), which provides:
Where the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer
. . . . .
(2) on acknowledgement by the bailee of the buyers right to possession of the goods.
Plaintiff contends that it was acting as a bailee while the trailer remained on its premises and that by executing the contract, it had acknowledged the defendant's right to possession of the trailer. Plaintiff further argues that because it did not agree to deliver the trailer to Caudle in Dallas, the trailer was to be delivered to Caudle "without being moved." These arguments, however, erroneously assume that the plaintiff *240 is a bailee under the Code.[1] It is apparent that the drafters of the Code contemplated a common law commercial bailee, such as a warehouseman, when using the term "bailee" in § 2.509(b). Certain analogies in the Code compel this conclusion. For example, a bailee is defined in Tex.Bus. & Comm.Code Ann. § 7.102(a)(1) (Tex.UCC 1968) as a person "who by a warehouse receipt, bill of lading or other document of title acknowledges possession of goods and Contracts to deliver them." [Emphasis added.] Section 2.509(b)(1) speaks of goods held by a bailee to be delivered to the buyer on the buyer's receipt of a negotiable document of title and § 2.509(b)(3) speaks of the buyer's receipt of a non-negotiable document of title. A document of title "includes bill of lading, dock warrant, dock receipt, warehouse receipt .... To be a document of title a document must purport to be issued by or addressed to a bailee and purport to cover goods in the bailee's possession ...." Tex.Bus. & Comm. Code Ann. § 1.201(15) (Tex.UCC 1968). A bill of lading is defined as "a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods ...." Tex.Bus. & Comm.Code Ann. § 1.201(b) (Tex.UCC 1968) [Emphasis added.] Similarly, a warehouse receipt is defined as "a receipt issued by a person Engaged in the business of storing goods for hire." Tex.Bus. & Comm.Code Ann. § 1.201(45) (Tex.UCC 1968) [Emphasis added.] Implicit in this language is the concept that the party who issues these documents and acknowledges the buyer's right to possession of the goods be in the business of storing goods for hirea commercial bailee. This is not true here. We conclude, therefore, that the plaintiff was not a bailee under the Code. Hence, § 2.509(b) does not control the determination of whether the risk of loss had passed to the defendant.
Plaintiff contends further that if § 2.509(b) is inapplicable then the risk of loss passed to the defendant pursuant to § 2.509(d). This section provides that a buyer and seller may specifically enter into a contract contrary to the other provisions of § 2.509. Plaintiff argues that such a contrary agreement was made because the terms of the contract for the sale of the trailer provided that the risk of loss passed to the defendant when the contract was signed by the parties.
The pertinent clause of the sales contract states:
No transfer, renewal, extension or assignment of this agreement or any interest hereunder, and no loss, damage or destruction of said motor vehicle shall release buyer from his obligation hereunder.
We hold that this language is insufficient to constitute a "contrary agreement" between the parties pursuant to § 2.509(d). A contract which shifts the risk of loss to the buyer before he receives the merchandise is so unusual that a seller who desires to achieve this result must clearly communicate his intent to the buyer. Hayward v. Postma, 31 Mich.App. 720, 188 N.W.2d 31, 33 (1971); Comment, Risk of Loss Under Section 2509 of the California Uniform Commercial Code, 20 U.C.L.A.L.Rev. 1352, 1362 (1973). This clause was apparently intended to fix responsibility for loss after the defendant had taken possession of the trailer. This interpretation is consistent with other provisions of the contract. For example, the contract provides that the "buyer shall keep said motor vehicle in good order and repair ...." It would indeed be difficult for the buyer to honor this responsibility without having acquired actual possession of the trailer. It is also apparent that the provisions of the contract were drafted for the benefit of a third party *241 the bank or other lending institution to which the contract would be sold. The contract was assigned to the Citizens National Bank of Denison, Texas with recourse on Sherrard. Furthermore, since risk of loss is not specifically mentioned in the contract, we cannot say that an agreement to the contrary may be inferred from reading the document as a whole. We, therefore, conclude that it was not the intention of the parties to transfer risk of loss of the trailer prior to delivery of possession to the buyer. To hold otherwise would be to set a trap for the unwary. If parties intend to shift the burden of the risk of loss from the seller to the buyer before delivery of the goods, then such must be done in clear and unequivocal language.
It is defendant's contention that pursuant to § 2.509(c) the risk of loss remained with the plaintiff because he had not taken actual physical possession of the trailer. We agree. That section provides,
In any case not within Subsection (a) or (b),[2] the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk of loss passes to the buyer on tender of delivery.
To determine if this section applies, the following questions must be resolved: (1) was the plaintiff a merchant? and (2) did the defendant receive the trailer? The plaintiff is a merchant under Article 2 of the Code as it "deals in goods of the kind... involved in the transaction...." § 2.104(a). The language "receipt of the goods" is defined in the Code as "taking physical possession of them." § 2.103(a)(3). It is undisputed that the defendant never took physical possession of the trailer; therefore, he had not received the goods. Accordingly, we hold that the risk of loss did not pass to the buyer before the trailer was stolen. It follows, therefore, that no breach of contract occurred.
Our holding is in accordance with the underlying principles of § 2.509 dealing with risk of loss. Under the Uniform Commercial Code, the risk of loss is no longer determined arbitrarily by which party had title to the goods at the time of the loss.[3] Instead, as the drafters of the Code state: "The underlying theory of these sections on risk of loss is the adoption of the contractual approach ...." Uniform Commercial Code, § 2-509, Comment 1. For example, under Tex.Bus. & Comm.Code Ann. § 2.509(a)(1) and (2) (Tex.UCC 1968), the risk of loss depends on whether the goods are shipped by a carrier pursuant to a "destination" or "shipment" Contract. In addition, § 2.509(d) provides that the buyer and seller are free to adjust by contract their rights and risks contrary to the other provisions of § 2.509. Subject to the placement of a contractual approach at the analytic center of risk of loss problems is the policy that a party who had control over the handling of goods should bear their loss. For example, under § 2.509(a)(1) and (2), the seller must bear the risk of loss until the goods reach the Control of the carrier, if it is a "shipment" contract, or the buyer, if it is a "destination" contract. Strong policy reasons support this approach. The party *242 in control is in the best position to handle properly the goods, to contract for shipment with a reliable carrier, and to insure the goods.[4] This theory is particularly applicable when the buyer is not a merchant and is unfamiliar with the problems of handling the goods.
Illustrative of these principles is the decision of Ellis v. Bell Aerospace Corp., 315 F. Supp. 221 (D.Or.1970), where the vendee purchased a helicopter from the defendant-vendor, and authorized him to store the helicopter with a bailee. The helicopter was later flown back to the vendor's factory where the plaintiff was to be instructed in its operation. During this instruction, the aircraft crashed. The court concluded that the vendor could not transfer risk of loss to the buyer until the buyer had actually received the merchandise, even though the buyer had paid the full price and had been notified that the goods were at his disposal. The fact that the helicopter had been held by a bailee with the consent of the buyer was not sufficient to bring the contract under Uniform Commercial Code, § 2-509(2) [Tex.Bus. & Comm.Code Ann. § 2.509(b) (Tex.UCC 1968)], because the helicopter remained under the practical control of the vendor. The court further observed that a merchant who is to make delivery at his own place of business continues to maintain control over the goods and can be expected to carry insurance to protect his interest in them. On the other hand, the buyer has no control over the goods and may not have had the foresight to obtain insurance on the undelivered merchandise. Id. at 224. See also Baumgold Bros. v. Allan M. Fox Co., 375 F. Supp. 807 (N.D.Ohio 1973).
Accordingly, this cause is reversed and rendered.
NOTES
[1] All references to the Code are to the Texas Business and Commerce Code Annotated (Tex.UCC 1968).
[2] It has previously been established that subsection (b) does not apply and subsection (a) dealing with goods shipped by a carrier is likewise inapplicable.
[3] Tex.Bus. & Comm.Code Ann. § 2.401 (Tex.UCC 1968) provides:
Each provision of this chapter with regard to the rights, obligations and remedies of the seller, the buyer, purchaser or other third parties applies irrespective of title to the goods except where the provision refers to such title.
See also Duesenberg & King, Sales and Bulk Transfers Under the Uniform Commercial Code, §§ 8.01-8.03 (3 Bender's Uniform Commercial Code Service 1968); White & Summers, The Uniform Commercial Code, 134-40 (1972); Comment, Risk of Loss Under the Uniform Commercial Code: The Unlamented Passing of Title, 13 Kan.L.Rev. 565 (1965); Comment, Risk of Loss Under the Uniform Commercial Code, 7 Ind.L.Rev. 711, 713 (1974); Comment, Risk of Loss Under Section 2509 of the California Uniform Commercial Code, 20 U.C.L.A.L.Rev. 1352 (1973).
[4] Uniform Commercial Code, § 2-509, Comment 3 States:
The underlying theory of this rule is that a merchant who is to make physical delivery at his own place continues meanwhile to control the goods and can be expected to insure his interest in them. The buyer, on the other hand, has no control of the goods and it is extremely unlikely that he will carry insurance on goods not yet in his possession.
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623 F. Supp. 162 (1985)
S. KANE & SON, INC.
v.
W.R. GRACE & CO.; David Nicholson; James Shay; James McKay; Joseph Gracie and City of Philadelphia.
GRAVELY ROOFING CO.
v.
W.R. GRACE & CO., David Nicholson, James Shay, James McKay and Joseph Gracie.
Nos. Civ. A. 84-4266, Civ. A. 84-4575.
United States District Court, E.D. Pennsylvania.
July 16, 1985.
Michael R. Needle, Philadelphia, Pa., for Kane.
*163 Susanna E. Lachs, Philadelphia, Pa., for Grace.
Carl Oxholm, III, Linda Berman, Philadelphia, Pa., for City.
MEMORANDUM
O'NEILL, District Judge.
In the first of these cases, plaintiff S. Kane & Son, Inc. filed an eight-count complaint against W.R. Grace & Son, Inc., a manufacturer and distributor of a synthetic membrane roofing material, David Nicholson, a salesman formerly employed by Grace, James Shay, a former employee of Kulzer Roofing Company, James McKay, a former employee of the City of Philadelphia's Department of Public Property, Joseph Gracie, a current City employee, and the City of Philadelphia, alleging that all defendants combined and conspired "to restrain trade in and/or monopolize the provision of commercial roofing services to the City of Philadelphia" (Complaint, ¶ 1). In the second case, plaintiff Gravely Roofing Co. filed a complaint which is identical except that it does not name the City of Philadelphia as a defendant. Defendants City of Philadelphia and Gracie move to dismiss in Kane and Gracie moves to dismiss in Gravely.
Kane was filed on September 6, 1984, and Gravely was filed on September 24, 1984, the same date the Local Government Antitrust Act of 1984 became effective. Section 3(a) of the Act provides:
"No damages, interest on damages, costs or attorney's fees may be recoverable under Section 4, 4A or 4C of the Clayton Act ... from any local government or employee thereof acting in an official capacity."
Section 3(b) of the Act contains a retroactivity clause stating:
"Subsection (a) shall not apply to cases commenced before the effective date of this act unless the defendant establishes and the court determines, in light of all the circumstances, including the stage of litigation and the availability of alternative relief under the Clayton Act, that it would be inequitable not to apply this subsection to a pending case. In consideration of this section, existence of a jury verdict, district court judgment, or any stage of litigation subsequent thereto, shall be deemed to be prima facie evidence that subsection (a) shall not apply."
As Kane was filed before the effective date of the Act, the City of Philadelphia and Gracie argue that § 3(a) should be retroactively applied to them pursuant to § 3(b). The Court concludes that, in light of all the circumstances, it would be inequitable not to apply § 3(a) to the City in Kane: (1) plaintiff may obtain relief from defendants other than the City and Gracie; and (2) little, if any, discovery has taken place. See TCI Cable Television, Inc. v. City of Jefferson, 604 F. Supp. 845 (C.D.Mo. 1984); Jefferson Disposal Co. v. Parish of Jefferson, L.A., 603 F. Supp. 1125 (E.D.La. 1985). Therefore, the Court will grant the City's motion to dismiss the Kane complaint insofar as it states claims for damages, costs or attorney's fees. The claim for injunctive relief will not be dismissed.
Gracie, defendant in both Kane and Gravely, argues that he is immunized from damage liability pursuant to § 3(a) because he was a local government employee "acting in an official capacity" as a City engineer. Plaintiffs respond that Gracie could not have been acting in his official capacity because he had no authority to engage in the alleged bid rigging conspiracy and his conduct, if proven, would violate the City Home Rule Charter and Pennsylvania state law. At this stage of the litigation, the Court will deny Gracie's motions to dismiss, without prejudice to their renewal at the close of the discovery pertaining to his involvement in the alleged conspiracy.
Finally, given the difference between the legal and factual issues in these actions and those in the prior state court proceedings, the doctrines of collateral estoppel and res judicata do not justify dismissal.
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654 S.W.2d 768 (1983)
James Frederick GENTSCH, Appellant,
v.
The STATE of Texas, Appellee.
No. A14-81-613CR.
Court of Appeals of Texas, Houston (14th Dist.).
May 5, 1983.
*769 Thomas M. Roberson, Houston, for appellant.
J. Sidney Crowley, Kay Burkhalter, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
OPINION
ELLIS, Justice.
Appellant was convicted for aggravated kidnapping and the jury assessed punishment, enhanced by two prior convictions, at imprisonment for life.
In his first ground of error, appellant contends the trial court erred by admitting evidence regarding an extraneous offense of assault. The record reflects the following testimony was elicited from complainant:
Q: Why did you make that decision?
A: Because of the kind of person he was and the things he did to me.
Q: Would you tell us what he did to you?
A: I object to that, your Honor.
The Court: Overruled, counsel.
Mr. Stephanow (defense counsel): Note our exception.
Q: Go ahead.
A: He hit me on a number of occasions.
*770 Mr. Stephanow: Renew my objection as calling for an extraneous offense....
Appellant's objection to the testimony failed to specifically point out the grounds for objection. An objection must not only identify what is objected to but also must set forth grounds for the objection. Hernandez v. State, 599 S.W.2d 614 (Tex.Cr. App.1980) (On State's Motion for Rehearing); Evans v. State, 480 S.W.2d 387 (Tex. Cr.App.1972). Appellant's first ground of error is overruled.
In grounds of error two and three, appellant argues the trial court erred in admitting evidence of a second extraneous offense of assault by appellant and an extraneous offense of attempted burglary. The state elicited testimony from the complainant during its case-in-chief that appellant had on one occasion tried to drag complainant downstairs to his apartment and had tried on many occasions to break into complainant's apartment.
We do not find it necessary to determine whether the above-mentioned extraneous offenses were admissible. Subsequent to the introduction over objection of the extraneous offenses in question, appellant urged the Court to declare a mistrial. The Court overruled the motion but instructed the jury to disregard for all purposes any testimony concerning the appellant's purported assaults and attempts to break into complainant's apartment. Such an instruction should have been adequate to cure any error.
However, even if the court's instruction to disregard was insufficient, any error made by admitting the extraneous offenses was harmless. The evidence of appellant's guilt is both overwhelming and undisputed in the instant case, even without the extraneous offenses. Appellant did not testify, nor did he present any controverting evidence that would impugn the State's case. In addition, the jury found two prior felony convictions to be true; therefore, an automatic life sentence was imposed by law. Tex.Penal Code Ann. § 12.42(d). A judgment will not be reversed due to the erroneous admissions of evidence that did not injure the defendant; the question is whether there is a reasonable probability that the evidence complained of might have contributed to the conviction. Prior v. State, 647 S.W.2d 956 (Tex.Cr.App.1983); Esquivel v. State, 595 S.W.2d 516, 529 (Tex. Cr.App.1980). We conclude that, even if the extraneous offenses were admitted erroneously, they did not contribute to the jury finding of guilt nor to the punishment assessed. Therefore, we overrule appellant's second and third grounds of error.
In ground of error four, appellant contends the Court erred in admitting into evidence appellant's statement, made during the course of the kidnapping, that he had stabbed his ex-wife's husband. The prosecutor elicited the following testimony:
Q: Did he ever threaten or tell you about other people he had killed?
A: Yes.
Q: What did he tell you?
A: He told me that he had stabbed his ex-wife's husband.
Mr. Stephanow (appellant's counsel): Your Honor, we would also object to this as calling for an extraneous offense.
The Court: Sustained.
We find the statement regarding the extraneous offense to be part of the res gestae of the charged offense; therefore, it was admissible as an exception to the general rule prohibiting the admission of extraneous offenses. Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973); Bachhofer v. State, 633 S.W.2d 869 (Tex.Cr.App.1982). We overrule appellant's fourth ground of error.
In his fifth ground of error, appellant complains the trial court erred by failing to limit the jury's consideration of the extraneous offenses admitted into evidence. This ground of error is not before this court for review because appellant failed to make a timely objection to the court's charge at the time of trial with regard to any of the extraneous offenses. Corbell v. State, 508 S.W.2d 86 (Tex.Cr.App.1974); Martin v. State, 489 S.W.2d 282 (Tex.Cr.App.1973).
*771 In his sixth ground of error, appellant complains the trial court erred when it did not instruct the jurors in its charge as to the law concerning appellant's failure to testify at the punishment phase of the trial. Appellant acknowledges that he made no objection nor requested a charge as required by Tex.Code Crim.Proc.Ann. arts. 36.14 and 36.15 (Vernon 1981). He contends, however, that failure to so charge the jury was fundamental error. We disagree. In the absence of a timely request or objection, the court is under no duty to give an instruction on defendant's failure to testify in his behalf. Jaffrion v. State, 501 S.W.2d 322 (Tex.Cr.App.1973), Handley v. State, 480 S.W.2d 738 (Tex.Cr.App.1972). We overrule appellant's sixth ground of error.
In addition to the brief filed by appellant's counsel, appellant has filed several pro se motions and briefs. There is no hybrid representation in Texas, Rudd v. State, 616 S.W.2d 623 (Tex.Cr.App.1981); therefore, appellant's pro se briefs present nothing for review. Nevertheless, in the interest of justice, we have examined the contentions asserted therein and find no error.
We affirm the judgment of the trial court.
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435 A.2d 1075 (1981)
STATE of Maine
v.
Harley LIBBY, Stephen Yates, and Paul Parsons.
Supreme Judicial Court of Maine.
Argued September 15, 1981.
Decided October 15, 1981.
John D. McElwee, Dist. Atty., Brian E. Swales, Asst. Dist. Atty. (orally), Houlton, for plaintiff.
E. Paul Eggert (orally), Daniel G. Lilley, Portland, for Parsons.
*1076 Peter S. Kelley, P. A. (orally), Caribou, for Yates.
Evans & Rush, Daniel T. Rush (orally), Millinocket, for Libby.
Before McKUSICK, C. J., and GODFREY, NICHOLS, ROBERTS, CARTER and WATHEN, JJ.
McKUSICK, Chief Justice.
Defendants Harley Libby, Stephen Yates, and Paul Parsons appeal from their convictions in Superior Court, Aroostook County, of arson and criminal mischief.[1] They complain that they were denied a fair trial because a remark made by a witness at trial and a newspaper article to which some of the jurors were exposed may have revealed to the jury that defendants had been tried before for the same crimes. In addition, Parsons separately argues that the evidence against him was insufficient to convict. We affirm the convictions of all three defendants.
At trial Kenneth Libby, brother of defendant Harley Libby, testified that at about 4:00 a.m. on Saturday, August 20, 1977, he and his wife Laurie were awakened by Harley Libby's unexpected entry into their house in Moro. Harley, who had been drinking heavily, complained that he could not find a job because local pulpwood companies were hiring Canadian woodsmen. Harley sought to enlist his brother's aid in burning the mobile cabins, called "bachelor camps," used to house the Canadians employed by Maurice Bugbee, a pulpwood operator on International Paper Company lands. He thought the mission would be safe on a weekend, when the camps were vacant, and would force Bugbee to hire local woodsmen. Though sympathetic, Kenneth talked his brother out of attempting the crime.
About 9:00 or 10:00 p.m. on Sunday, August 21, Harley Libby returned to Kenneth's house carrying a .22 caliber pistol and accompanied by defendants Yates and Parsons, and by two others not involved in this appeal, Calvin McCarthy and Brian Donahue. They had all been drinking. In the presence of the others Harley told his brother they were going to burn the Bugbee camps, and this time Harley succeeded in recruiting Kenneth's assistance. All six drove north on Route 11 to the entrance of the woods road leading to the camps in Township 7, Range 5; Kenneth Libby drove his brother and Yates in his pickup truck, while McCarthy took Parsons and Donahue in another. Some member of the group, not identified in the testimony, carried an ax. All except the drivers got out and walked down the woods road toward the camps situated some quarter of a mile off Route 11. Equipped with walkie-talkies, McCarthy and Kenneth Libby drove a short distance south and north, respectively, on Route 11 to take positions as lookouts. When Kenneth Libby heard the sound of three or four .22 caliber gunshots, he returned to the camp access road, soon to be joined by McCarthy. They heard much commotion coming from the direction of the camps, and McCarthy left to drive back to Kenneth Libby's house. A passerby stopped to tell Kenneth Libby he had observed a fire in the area of the camps from a hilltop vantage point. Libby himself could now see a glow over the treetops.
After Kenneth Libby had sent the passerby off to Masardis to call the fire department, Parsons and Donahue emerged from the woods, followed by Yates and Harley Libby. Kenneth Libby took them all back to his house, McCarthy having returned alone some fifteen minutes ahead of them. They all drank and Harley Libby boasted of having destroyed the entire camp and equipment. Three guns, including the .22 caliber pistol, were laid on Kenneth's kitchen table, on the understanding that he would hide them. All participants agreed that as an alibi they would claim to have been playing cards at Kenneth Libby's house.
Laurie Libby, Kenneth's wife, testified that when Yates returned to her house with the others on the night of August 21 he *1077 spoke of how well a truck would burn when first treated with engine starter fluid. She testified that "[d]uring the discussion of the fire, they had taken their guns off"; and in answer to the State's question whether she remembered "any particular individual who took guns off," she said, "Lee [Harley Libby] took a gun off and Brian Donahue and Paul Parsons laid a gun on the table."
A state police officer, state fire inspector, and Maurice Bugbee testified to the condition of the camps and surrounding equipment following the events described above. Many of the camps and trucks had been extensively damaged by fire, and some of them totally destroyed along with equipment and tools stored inside. Matches and flammable fluids at the scene suggested arson. One truck had been shot up by gunfire; a ballistics expert testified that two .22 caliber shell casings found on the premises matched test casings from Harley Libby's gun. Other equipment and structures were vandalized. Mr. Bugbee estimated the damage to the property of himself and International Paper Company at $100,000.
I.
Defendant Parsons contends that the evidence against him is insufficient to support his conviction, claiming that it establishes no more than that he was present during the planning and commission of the crime. Were the evidence in fact no more extensive than he claims, Parsons would be entitled to a reversal of his conviction, for presence at the scene of a crime without anything more does not prove guilt. See State v. Gervais, Me., 394 A.2d 1183, 1185 (1978). Once a defendant's presence has been proven, however, the State need prove only any conduct promoting or facilitating, however, slightly, the commission of the crime. In Gervais, for example, the necessary increment was provided by evidence that the defendant, who was present with the principal before and during the commission of a crime, was also a friend of the perpetrator and did nothing to disengage himself from continuing in the company of the perpetrator after the crime. See id. at 1185-86.
The evidence tying Parsons to the crimes of arson and criminal mischief goes well beyond mere presence. Parsons not only attended the meeting at Kenneth Libby's house where the crimes were planned, but also rode voluntarily to the Bugbee camp with the others and walked down the woods road toward the camp with them, knowing what they intended to do upon reaching their destination. He came back with the others from the direction of the camps to the waiting pickup truck, and returned with them to Kenneth Libby's house, where they discussed the crimes and concocted an alibi. According to Laurie Libby, Parsons was involved in leaving one of the three guns at the Libby house for safekeeping following the escapade.
Defense counsel correctly points out that the record does contain some suggestions that Parsons may not have been as culpable as his companions. There was testimony that he was drunk throughout the evening and that he did not participate in the conversations of the others. Laurie Libby's testimony is ambiguous, Parson's attorney argues, in that literally she spoke of a gun being laid on the table by two men, Donahue and Parsons.
Those mere glimmers of doubt as to the extent of Parsons' participation in the crimes do not, however, compel reversal of his convictions. The presiding justice properly instructed the jury that intoxication is a defense if "it establishes a reasonable doubt as to the existence of an element of the crime." See 17-A M.R.S.A. § 58-A (Supp.1980). The jury's verdict of guilt must therefore be seen as a finding of fact that Parsons was not too drunk to have had the requisite criminal intent to damage or destroy the property at the Bugbee Camps. Since on the evidence before it a rational jury could have found beyond a reasonable doubt that Parsons was sufficiently sober to have a conscious object to cause the results of his conduct, see 17-A M.R.S.A. § 10(1)(A), we cannot say the jury that convicted Parsons erred in rejecting the defense of intoxication.
*1078 Although Laurie Libby could have been more precise in her testimony, she did in any event clearly implicate Parsons as having a gun. From the whole evidence viewed in the light most favorable to the State, including Kenneth Libby's testimony that three guns were left with him, the jury would have been justified in finding that Parsons, on returning to the Libbys' house, took a gun off and laid it on the kitchen table and hence, that Parsons had worn a gun during the escapade at the Bugbee camps.
Even if Parsons did remain silent, he was present at the planning, execution, and "debriefing" of the criminal enterprise, and the jury could rationally infer that by that presence he aided his companions in venting their anger at the employer of Canadian pulpcutters. The presiding justice properly instructed the jury on the law of accomplice liability laid down by 17-A M.R.S.A. § 57 (Supp.1980). The evidence against Parsons was more than ample to justify the jury in convicting him at least as an accomplice. The incriminating evidence exceeded the minimum necessary to sustain a conviction on appellate review, namely, such proof that, when viewed in the light most favorable to the State, a rational jury could have found guilt beyond a reasonable doubt. See State v. Theriault, Me., 425 A.2d 986, 988 (1981).
II.
The convictions here on appeal resulted from the second trial of these three defendants on the same indictments. At their first trial, the three defendants were found guilty on February 1, 1979, but their first convictions were set aside by this court because of improper prosecutorial comment on their failure to testify.[2]See State v. Libby, Me., 410 A.2d 562 (1980). During her cross-examination at the second trial by one of the defense counsel, Laurie Libby remarked, apparently inadvertently, that she and her husband "haven't discussed it [the crime] since the last trial very much." Defendants' counsel raised no contemporaneous objection, but later moved for a mistrial on the grounds of irremediable prejudice from the reference to the first trial. The presiding justice denied the motion, finding the statement nonprejudicial.[3] Defendants on appeal claim that ruling was reversible error.
In the first place, it is dubious that defendants have saved their objection to Mrs. Libby's testimonial reference to "the last trial." Their counsel took no step immediately to call the reference to the presiding justice's attention out of the jury's hearing. Although they perhaps decided they did not want any cautionary instruction given for fear the damage would only be increased thereby, their silence deprived the justice of any opportunity of considering an immediate instruction as a remedy. Rather, all three defense attorneys delayed making any objection until after all of them had completed cross-examining Mrs. Libby after the State had then rested, and after the defense had made and argued and the justice had denied motions of acquittal. Cf. State v. Mimmovich, Me., 284 A.2d 282, 287 (1971) (waiver of objection where alleged misconduct of two jurors was not brought to judge's attention in a motion for new trial until the following day, after the jury had withdrawn to deliberate). The presiding justice, however, considered defense counsel's motion for a mistrial on its merits and we will accordingly review his denial on the same basis. "A motion for mistrial is addressed to the sound discretion of the presiding Justice," State v. Baker, Me., 423 A.2d 227, 231 (1980), and we review his denial of such a motion only for abuse.
The justice below did not abuse his discretion in denying defendants a mistrial. *1079 Under the rule of State v. Bazinet, Me., 372 A.2d 1036 (1977), "once a juror has been exposed to potentially prejudicial extraneous information, the trial court must make appropriate inquiry to insure that the fairness of the trial has not been compromised." Id. at 1039. If the trial court finds a reasonable possibility of prejudice, a presumption arises that the verdict will be tainted; if he finds none, the matter is ended unless his determination was clear error. The justice below complied with the procedural requirements of Bazinet by making a finding of fact that Laurie Libby's statement was not prejudicial. This was not clearly error. Knowledge by jurors that a prior trial had occurred is not per se prejudicial to defendants. See People v. Knippenberg, 70 Ill. App. 3d 496, 500, 26 Ill. Dec. 805, 809, 388 N.E.2d 806, 810 (1979). Mrs. Libby's brief, cryptic reference to the "last trial" left unclear who was tried, for what, and with what outcome. Moreover, fair deference is owed the presiding justice's finding on the spot because he observed exactly how Mrs. Libby made her offending remark and how the jurors reacted to it. The justice was also justified in inferring from defense counsel's unusual delay in moving for a mistrial that they also at the time of Mrs. Libby's statement viewed it of little consequence.
The justice below acted well within his discretion in denying defendants' motion for a mistrial.
III.
On a request by defendant Parsons' attorney, the presiding justice conducted a collective voir dire examination of the jurors to determine if any had heard of or read a front-page story in the Bangor Daily News headlined, "Three face retrial in woods camp fire." Two jurors admitted to having seen the headline, six others to having heard about it. The remaining five had neither seen nor heard of it. On individual voir dire, those jurors who admitted any knowledge showed no understanding that defendants had faced trial before; all they knew was that the newspaper article pertained to the current trial. The presiding justice found that none of the jurors had learned anything prejudicial. Defendants made no objection. In absence of objection at trial, the presiding justice's finding must be sustained on appeal unless infected with obvious error. See State v. Carey, Me., 303 A.2d 446, 449 (1973). As we have noted above, jurors' knowledge of a prior trial does not per se mean they cannot give a fair trial to an accused on retrial. Since the voir dire revealed that the jurors had failed to glean from the headline the prejudicial inference feared by defendants, we find no error, obvious or otherwise, in the justice's conclusion that defendants were not prejudiced.
The entry must be:
Judgments of conviction affirmed.
All concurring.
NOTES
[1] See 17-A M.R.S.A. §§ 802, 805 (Supp.1980).
[2] Only Libby and Yates first appealed, but the State consented to retry Parsons also because the improper prosecutorial comment tainted his conviction as much as that of his co-defendants.
[3] The justice also found that though the statement was elicited under cross-examination by defendant Parsons' attorney, it was not the product of a conscious effort to inject error into the record.
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435 A.2d 1066 (1981)
John H. SMITH, Appellant,
v.
UNITED STATES, Appellee.
No. 80-379.
District of Columbia Court of Appeals.
Argued March 25, 1981.
Decided September 16, 1981.
*1067 Jay E. Shanklin, Washington, D.C., for appellant.
J. Alvin Stout, III, Asst. U.S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U.S. Atty., John A. Terry, John R. Fisher and Donald L. Golden, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before KELLY and FERREN, Associate Judges, and PAIR, Associate Judge, Retired.
PER CURIAM:
A jury found appellant, John H. Smith, guilty of carrying a dangerous weapon without a license. D.C. Code 1973, § 22-3204. The court sentenced him as a repeat offender to a prison term of three to ten years. Smith contends on appeal that the trial court should have suppressed the gun, which the police recovered without a warrant from the locked glove compartment of his rental car after he already was under arrest. He argues that the policewho saw the gun through a crack in the glove compartmentcommitted an unreasonable search because it did not fit within any of the narrowly defined exceptions to the warrant requirement of the Fourth Amendment. We hold that the warrantless search was valid as incident to his arrest. We affirm Smith's conviction.
I.
At approximately 1:55 a. m. on January 18, 1979, Police Sergeant Thomas James, Jr., was driving south on the 1700 block of 9th Street, N.W., when he passed appellant and a male passenger travelling north in a light grey Ford Granada. He had just heard over his radio that there had been an assault six blocks away at 11th and O Streets, and that the suspects had fled in a "white Plymouth or Dodge." Appellant was driving very slowly through the intersection when he made eye contact with Sergeant James. James said that appellant seemed uncertain as to which way to go. Deciding that this was "bizarre," the officer flashed his lights and made a "traffic stop."
James stepped out of his cruiser, and appellant and his passenger got out of their car. Appellant produced his driver's permit but said the car registration was locked in the glove compartment and that he did not have the key. Sergeant James frisked appellant and did not find anything. He then made a flashlight search of the car; again, he found nothing.
James called for assistance, and several officers soon arrived. They radioed back to the assault scene and were told "that should be the car and they should have a gun in it." The officers were instructed to take appellant and his passenger to 11th and O Streets. One of the officers drove the Granada, while another (Johnson) transported appellant and passenger to the scene.
When they arrived at 11th and O Streets, the police took appellant and his passenger out of the police cruiser for a showup before *1068 the alleged assault victim. Both were positively identified, and appellant was named as the one who pointed the gun. At this point, the police formally arrested appellant for the alleged assault.
Immediately thereafter, Officer Johnson searched the back seat of his cruiser where appellant had been seated and found a soft leather gun holster. Appellant denied any knowledge of it. In addition, during a search of the area where the assault allegedly had occurred, the police found a round of .380 caliber ammunition.
In the meantime, Sergeant James searched appellant's car. He shined a light into the 1/8th inch crack of the locked glove compartment and saw the outline of a gun. He forced open the compartment and found a loaded gun lying atop the rental agreement (in appellant's name). The police then took appellant and his passenger to the police station, where each was booked for assault with a deadly weapon. D.C. Code 1973, § 22-502. Appellant also was charged with carrying a dangerous weapon without a license. Id. § 22-3204. The assault charge later was dropped.
II.
Warrantless searches are unreasonable under the Fourth Amendment unless they fall within one of a few, carefully delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967); Matter of B.K.C., D.C.App., 413 A.2d 894, 902 (1980); Jackson v. United States, D.C.App., 404 A.2d 911, 918 (1979).
During the course of this appeal, the Supreme Court explicated the exception to the warrant requirement for a search incident to an arrest in the context of the arrest of a suspect in an automobile. See New York v. Belton, ___ U.S. ___ at ___ n.3, 101 S. Ct. 2860 at 2864 n.3, 69 L. Ed. 2d 768. The Court held that
when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment. . . . [Id. at 6 (footnotes omitted).]
The Court specified that the term "`[c]container'. . . includes closed or open glove compartments. . . ." Id. at ____ n.4, 101 S.Ct. at 2864 n.4.
The question, then, is twofold: (1) whether the police had probable cause to make the arrest and, if so, (2) whether the search of the automobile was a "contemporaneous incident of that arrest." Id. at ___, 101 S.Ct. at 2864.[1] If both conditions were met, it follows the search here was reasonable. Id.[2]
III.
There is no fixed formula for determining the existence of probable cause; it is, rather, a matter of judgment. Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949); Price v. United States, D.C.App., 429 A.2d 514, 516 (1981). In general, though, probable cause exists "where `the facts and circumstances within [the arresting officers'] knowledge, and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327 (1959) (citation omitted). Accord, Wray v. United States, D.C.App., 315 A.2d 843, 845 (1974). The court must look to "the factual and practical considerations of everyday life on *1069 which reasonable and prudent men, not legal technicians, act." Brinegar, supra at 175, 69 S.Ct. at 1310.
We conclude that, under all the circumstances here, the police officers had probable cause to believe that appellant had committed the assault by the time they placed him under formal arrest and searched the glove compartment. Appellant's halting approach to the intersection upon seeing the police, late at night, six blocks from the scene of an alleged assault (of which Sergeant James was aware) justified James in making an investigatory stop of the car. Irby v. United States, D.C.App., 342 A.2d 33, 37 (1975). Although the protective frisks and flashlight search of the car revealed nothing, Officer Johnson's arrival brought news that the Granada was the likely escape car and that it should contain a gun. At that point the police transported appellant and his passenger to 11th and O Streets for a showupwhich appellant does not contest. Compare United States v. Short, 187 U.S.App.D.C. 142, 145 & n.7, 570 F.2d 1051, 1054 & n.7 (1978) and United States v. Wylie, 186 U.S.App. D.C. 231, 239, 569 F.2d 62, 70 (1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1527, 55 L. Ed. 2d 542 (1978) with Dunaway v. New York, 442 U.S. 200, 216, 99 S. Ct. 2248, 2258, 60 L. Ed. 2d 824 (1979). At the showup, the assault victims positively identified appellant as the man who held the gun. The police thereupon placed appellant under formal, custodial arrest. Immediately thereafter, the police found ammunition at the scene and a leather holster in the police cruiser where appellant had been sitting.
Under these circumstances, the police officers had probable cause to believe that appellant had committed a crime involving a gun. Accordingly, the officers constitutionally searched the interior of appellant's car (including the glove compartment) without a warrant, for the search was a "contemporaneous incident" of a "lawful custodial arrest." Belton, supra ___ U.S. at ___, 101 S.Ct. at 2864.[3]
Affirmed.
NOTES
[1] The Supreme Court applied this second criterion to the facts in Belton, supra, in the following words: "The search of the respondent's jacket followed immediately upon that arrest." Id. at ___, 101 S.Ct. at 2865.
[2] There is no question here of appellant's standing to challenge the search and seizure. Compare United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980).
[3] Because of our disposition of this case, we need not consider whether the "automobile exception" to the warrant requirement also justified this search. See Belton, supra at ___ n.6, 101 S.Ct. at 2865 n.6.
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343 S.W.2d 441 (1961)
DEZENDORF MARBLE COMPANY, Petitioner,
v.
Jerry Glen GARTMAN, by Next Friend, et al., Respondents.
No. A-7825.
Supreme Court of Texas.
February 8, 1961.
James R. Sloan, Looney, Clark, Mathews, Thomas & Harris, Austin, Donald S. Thomas & Mary Joe Carroll, Austin, with above firm, for petitioner.
Byrd & Davis, Austin, for respondent.
GRIFFIN, Justice.
This is a suit for personal injuries suffered by Jerry Glen Gartman as a result of the explosion of a dynamite cap found on the defendant's premises by Jimmy Lynn Gartman, brother of Jerry Glen Gartman. The case was tried to a jury in Travis County, and upon the answers of the jury to the issues submitted, the trial court rendered a judgment in favor of plaintiffs (respondents herein) against the defendant (petitioner herein) in the amount of $63,170. On appeal by defendant, this judgment was affirmed by the Court of Civil Appeals. 333 S.W.2d 404. We affirm the judgment of the Court of Civil Appeals.
The parties will be referred to as they they were in the trial court.
The Court of Civil Appeals has a very full and clear statement of the facts, and we shall not set them out again, except to repeat only such facts as are necessary to clarify the issues herein.
On Saturday, May 10, 1958, A. J. Gartman, father of plaintiff and an employee of *442 defendant, took his family to the defendant's marble quarry which is located some five or six miles south of Llano, Texas, and where Gartman was employed. On Friday, the day before, defendant's superintendent, Mr. Wigington, had asked for a volunteer to come to the quarry the morning of the 10th and help him with some work that needed to be done on the premises and for the benefit of defendant. A. J. Gartman volunteered to come and assist with this work and at the same time practice operating the dragline, which he had operated for defendant on May 8th. He also wanted to bring his family to Llano to look for a house into which they could move so as to be close to his work. Gartman's family were then living in Austin, Texas, some 60 to 70 miles from defendant's quarry. It was agreed that A. J. Gartman would meet Wigington at Wigington's home in Llano at 8:00 in the morning of May 10th. The Gartmans were late getting away from Austin, and instead of going to Llano, they went directly to the quarry. On arrival Mr. Gartman tried to start the dragline, but flooded the motor and was unable to start it. Within a few minutes Mr. and Mrs. Wigington arrived. Mrs. Gartman and Mrs. Wigington and the three Gartman boys walked around over the quarry property while the men worked moving defendant's pumps so as to pump the water from places where it had collected in the quarry. About 1:00 or 2:00 in the afternoon, after the work with the pumps had been completed, Mr. Gartman told Mr. Wigington that he would take his family on into Llano to look for a house. But Mr. Wigington insisted that Gartman start the dragline and break up some rocks that had been blasted loose on Friday afternoon so that defendant's crew could begin processing these rocks the first thing on the next working day. Mr. Gartman agreed and the two men started the dragline and Gartman operated it for some one or two hours.
During the time the Gartmans were on the quarry property, Mr. Wigington invited the two ladies and the boys to sit in the office and wait. The weather was hot and the office was uncomfortable; so the women and the boys moved out under a tree near an old Jeep frame. The boys were playing around in that vicinity when Jimmy Lynn Gartman, a deaf mute aged eight, found, near the Jeep, an object to which was attached two loose wires. This object was a dynamite cap. Jimmy crumpled the wires up in his hand, and showed them to his mother. She told him that he should not take them away, and for him to throw them away. She thought he had thrown them away, but instead Jimmy had put the cap and wires in his pocket and had taken it home with him. Neither Jimmy nor his mother knew what this was and neither knew it was dangerous to have such object.
The next day, while the three boys were at home playing with an electric train set, Jimmy, for the first time, showed the blasting cap to plaintiff, Jerry Glen Gartman, aged 14 years. Jerry had seen something in a trash can back of a radio shop near his home which resembled this, and he thought it was a radio part. He talked Jimmy into letting him have the object and first he connected it to his toy radio and later to a toy electric train transformer. When Jerry turned on the electric switch to operate the toy train, the blasting cap exploded in Jerry's eyes inflicting serious and severe injuries. Jerry had to have one eye removed, and the sight in the other eye is severely damaged. Jerry suffered other temporary injuries.
The first point which defendant has in his petition for writ of error is that "the Court of Civil Appeals erred in holding that the instant case is controlled by Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587 (1953), and Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, [8 A.L.R. 2d 1231] (1948)." In his Supplemental Brief filed in this Court, after oral argument of the cause, plaintiffs' counsel says that since Jerry Gartman was neither a trespasser nor a licensee, but simply a member of the general public, *443 they agree that Eaton v. R. B. George Investments and Banker v. McLaughlin, and § 339 of the Restatement of Torts, were not applicable to the facts of this case. We agree that the "attractive nuisance" doctrine is not the test by which defendant's liability is to be tested in this proceeding.
Defendant contends that since plaintiff was a trespasser, or, at best, a licensee it owed him no duty, except that of not wilfully injuring him. In the case of Atex Const. Co. v. Farrow, 1934, Tex.Civ.App. 71 S.W.2d 323, 325, wr. ref., Mr. Farrow sued the Construction Company for damages suffered because of the death of his son. Some three years prior to the son's death, the Construction Company crew had camped in the Richardson pasture near the Farrow home for four or five days. During this period the crew had on hand dynamite caps and used some of them in blasting operations. When the crew moved camp, the evidence showed there were dynamite caps left in boxes and scattered over the grounds of the camp. Three years later the Farrow child found some of these caps, gathered a number of them in his hands and when the caps were exploded, the child was killed. In discussing the liability for negligence of one using dangerous instrumentalities resulting in injury or death to third parties, the Court said:
"The authorities are legion holding that a master who uses dangerous instrumentalities, such as dynamite caps, in the prosecution of his business is charged with the highest degree of care in the custody and use thereof, and, when he intrusts them to a servant or employee, the proper custody and use thereof become a part of such servant's or employee's employment, and he must use the same degree of care and attention as the law requires of the master; and, when such dangerous instrumentalities are negligently permitted to escape the custody or possession of the servant or employee and injury is done to a third person, the master is liable for the consequences of such injury. The master is also liable for the passive negligence of his servant or employee in failing to safely keep such dangerous instrumentalities committed to his care in the discharge of the master's business and in failing to take proper precautions for the protection of the public. Branch v. International & G. N. Ry. Co., 92 Tex. 288, 47 S.W. 974, 71 Am. St.Rep. 844; City of Lubbock v. Bagwell (Tex.Civ.App.) 206 S.W. 371, writ of error refused;" citing numerous other authorities from other states.
For other cases declaring the same rule, see Walker, Inc. v. Burgdorf, 19u1, 150 Tex. 603, 244 S.W.2d 506; Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo.1952, 246 S.W.2d 742(7).
"The courts are in complete accord upon the proposition that a user or storer of explosives owes a high degree of care to avoid injury to children who might have access to them, the precise degree of care being commensurate with the danger involved." 10 A.L.R. 2d 27. This exhaustive annotation includes authorities bearing both on the liability of the user of explosives and also on the question as to his negligence being a proximate cause of injury suffered by one from the explosion of these dangerous instrumentalities, both on and off the defendant's premises. Defendant argues that, granting for the sake of argument, they were negligent in the handling of the cap (which they vigorously deny) no recovery can be had against them for there is no causal connection between such negligence and the injury suffered the next day by plaintiff, Jerry Glen Gartman. Defendant says he could not be charged with foreseeing such result. The cases hold that all the defendant has to foresee is that someone would be injured by an explosion of the blasting cap. The details of how the explosion was triggered are not required to be foreseen. Foreseeability of some similar injury is all that is required. "* * * As a person of ordinary intelligence *444 and prudence, he [defendant] should have anticipated the danger to others created by his negligent act, and the rule [of foreseeability] does not require that he anticipate just how injuries will grow out of that dangerous situation." Sullivan v. Flores, 1939, 134 Tex. 55, 132 S.W.2d 110, 111; see also McAfee v. Travis Gas Corporation, 1941, 137 Tex. 314, 153 S.W.2d 442; Robert R. Walker, Inc. v. Burgdorf, supra; City of Lubbock v. Bagwell, Tex. Civ.App.1918, 206 S.W. 371, wr. ref.; Atex Const. Co. v. Farrow, supra; Natatorium Laundry Co. v. Saylors, Tex.Civ. App.1939, 131 S.W.2d 790, wr. dism., cor. judg.; Houston Transport Co. v. Grimm, Tex.Civ.App.1943, 168 S.W.2d 892, wr. ref., w. o. m.; 10 A.L.R. 2d 123.
Defendant urges that plaintiffs sought a recovery on the basis of the "attractive nuisance" doctrine, both in the trial court and in the Court of Civil Appeals, and that in this Court plaintiffs have completely changed their theory. While plaintiffs have not abandoned the "attractive nuisance" doctrine as a basis for recovery they, for the first time, urge that defendant is liable for its negligence in the handling of the dynamite cap, which negligence was a proximate cause of the injury done to Jerry Glen Gartman. The facts show that Jerry Glen was not injured on the premises of defendant, but that he was injured in his own home on the day following the finding of the dynamite cap by his brother, Jimmy Lynn Gartman, on the premises of the defendant. Plaintiffs say that one using dangerous instrumentalities on his premises must exercise a high degree of care in using such instrumentalities to prevent injury to members of the public. Plaintiffs allege certain acts of negligence on the part of the defendant in its failure to exercise this high degree of care, and that such negligent acts were proximate cause of the injuries suffered by Jerry Glen Gartman.
In order that plaintiffs may recover they must have pleadings supporting their theory of recovery; the record must contain evidence to support these pleadings; the jury, or other fact finder, must have found, from the evidence at the trial, that such negligent acts were committed by defendant and that the same were a proximate cause of the injury. Plaintiffs' pleadings show allegations that defendant was in charge of, and operating, the premises on which Jimmy Lynn picked up the dynamite cap, that the cap was used by defendant in the course of its business of operating the quarry; that with knowledge and consent of defendant small children were permitted to play freely upon the premises and in the vicinity where the dynamite cap was found by Jimmy Lynn Gartman on the occasion in question; that the dynamite cap was a dangerous instrument; that defendant was guilty of negligence in not properly inspecting the premises for loose dynamite caps; in failing to keep a written record of the caps as received and as used; that defendant could and should have known small children would be upon and walking over the premises; in permitting its employees to carry dynamite caps with attached wires in their pockets while said employees were engaged in defendant's business. It is our opinion that these are appropriate allegations of proximate cause based on the negligence alleged.
The cause was submitted to the jury and it was found that (1) defendant knew, or should have known, that young children were likely to be present on the premises; (2), (3) and (4) that Jimmy Lynn Gartman found the dynamite cap on defendant's premises, and that the cap belonged to defendant, but that Jimmy Lynn Gartman did not realize the risk involved in picking up the cap and taking it home, and (5) that plaintiff, Jerry Glen Gartman, did not realize the risk involved in connecting the cap to an electric current; (6) that Jake Gonzales carried dynamite caps in his pockets which was negligence and a proximate cause of the explosion; (7) that defendant failed to adequately inspect its premises for loose caps, which was negligence *445 and a proximate cause of the explosion; and (8) defendant failed to maintain proper custody and control of the cap in question which was a proximate cause of the explosion. There are other issues which were submitted to the jury and all were answered favorably to the plaintiffs.
Defendant's second point is that "the Court of Civil Appeals erred in affirming the judgment of the trial court in that there was no evidence of one or more of the elements essential to recovery on any ground of negligence found by the jury," and contending also that there is no evidence of causal connection on the grounds of negligence found by the jury. The evidence in this case shows that defendant used blasting caps, similar to the one found by Jimmy Lynn Gartman, in the necessary operation of its business; that an employee of defendant was entrusted with the duty of inserting the caps in the holes prepared for their use, and connecting these caps in circuit so they could be detonated, and by force of their explosion loosen the marble to be recovered and processed by defendant in its ordinary business; that these caps are highly explosive and very dangerous; that no one other than defendant, its agents and servants had ever used blasting caps on these premises; that no written record was kept of the number of blasting caps received, the number used, and the number remaining after use; that there were occasional misfires in the use of the caps; that blasting caps had been used in blasting operations on Friday afternoon, May 9th; and that children, with the permission of defendant, on many occasions, were on the premises playing on and around the old Jeep frame where Jimmy picked up the caps.
There is evidence that the defendant would shoot several holes at one time, and that it was necessary to insert one dynamite cap in each hole; that there should be an inspection of each hole after each blast to determine whether or not all caps had fired, or if some were misfires, or had been blown from the hole undetonated. The evidence shows this was not done. Also there is evidence showing that no adequate inspections were made of the premises. The cap in question had the bright wire attached, but it was not a fresh cap according to the evidence. The jury could well believe it had been lying at the place where found for some time, and that an adequate inspection would have resulted in the defendant finding the cap and removing it from that place. When we consider the evidence that there was no accurate check kept on the caps, their use, and the number of misfires; that no systematic inspection was made of the blasting holes after detonation, and the other evidence set out above by us, and that set out in the opinion of the Court of Civil Appeals, we hold there is evidence to support the grounds of negligence found against defendant by the jury, and that each of these was a proximate cause of the explosion.
There was evidence that Gonzales, on occasion, carried blasting caps in his pockets while transporting them from the house in which they were kept to the blasting holes where they were used; that Gonzales, on occasion, would cut pieces off the wire attached to the caps when such wires were needed to properly wire the circuits; that Jake Gonzales, defendant's employee intrusted with the dynamite caps, had eaten lunch on or near the old Jeep frame on many occasions; that frequently the blasting holes would all be prepared and wired before lunch and that Gonzales would then eat his lunch and afterwards connect the blasting caps in circuit for detonation; that the blasting caps, when received were "shucked" and "shunted"; i. e., the two wires were fastened together at the end farthest from the metal cylinder or cap proper with a lead device called a "shunt", the purpose of which is to ground the lead wires together to reduce the hazard of extraneous current getting inside the cap and igniting it. The new caps are packaged separately with the two wires in a figure "8" coil, like shoestrings, and banded with a *446 "shuck" to prevent the wires from one cap from tangling with the wires from other caps. The cap picked up by Jimmy had neither "shunt" nor "shuck", and the wires were less than the usual and normal length.
Defendant's third point states that to affirm the decision of the Court of Civil Appeals is to establish an absolute liability upon the user of potentially dangerous substances without any negligence on the part of the defendant. The authorities cited and discussed above recognize there must be negligence on the part of the defendant before there can be any liability established against him, and that such negligence must be a proximate cause of the injury and damages suffered.
The judgment of the Court of Civil Appeals is affirmed.
STEAKLEY, J., not`sitting.
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291 Pa. Super. 364 (1981)
435 A.2d 1269
Edward STENGENA and Dena Kater, Appellants,
v.
Bruce K. MADDEN and Margaret S. Madden.
Superior Court of Pennsylvania.
Argued January 27, 1981.
Filed October 16, 1981.
*365 Joseph Mellace, Philadelphia, for appellants.
Brian P. Sullivan, Norristown, submitted a brief on behalf of appellees.
Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
CAVANAUGH, Judge:
The appellants in this case, Edward Stengena and Dena Kater, commenced an action in trespass in the court of Common Pleas of Montgomery County against appellees, Bruce K. Madden and Margaret S. Madden. The action was based on an automobile accident which allegedly occurred in Bay Head, Ocean County, New Jersey. Counts one and three of the complaint alleged that the appellants who were plaintiffs in the court below, sustained damages as a result of appellees' negligence. Counts two and four sought punitive damages against the appellees and alleged that the "defendant, Margaret S. Madden, through her agent or servant the defendant, Bruce K. Madden, was operating said motor vehicle in a wilful, malicious, intentional, wanton and reckless manner" and that the appellants were injured as a result of this wilful and reckless conduct.
Appellees filed preliminary objections to counts two and four in the nature of motions to strike the second and fourth counts. The court below sustained the preliminary objections to the second and fourth counts of the complaint by order dated July 8, 1980. From this order the appellants have appealed to this court.
This case is controlled by Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981). In that case it was stated at 286 Pa.Super. 248, 428 A.2d 665: "In count two of her complaint, appellant demanded punitive damages in excess of $10,000 based upon the wilful, malicious, intentional, wanton and reckless manner in which appellee Vickers allegedly operated his vehicle." In Vickers the lower court sustained the defendant's preliminary objections to count two of the complaint and struck that count. On appeal, this Court determined that the order was interlocutory as the action continued as to one count and therefore quashed the *366 appeal.[1] In the instant case the action continues as to counts one and three. The order is therefore interlocutory and not appealable. As noted in Bagshaw v. Vickers, 286 Pa.Super. 249, 428 A.2d 666:
Instantly, the trial court's order dismissed one count of appellant's two count complaint. It is abundantly clear that the trial court's order does not dispose of the entire case or otherwise end the litigation. Appellant is not "out of court" since she may still pursue her claim for damages in excess of $10,000 contained in the first count of her complaint. The trial court's order, therefore, is interlocutory. See, e.g., Gurnick v. Government Employees Insurance Company, 278 Pa.Super. 431, 435 n.2, 420 A.2d 620, 621 n.2 (1980). See Giannini v. Foy, supra; Wilcox v. Evans, 190 Pa.Super. 166, 153 A.2d 817 (1959). Since the appeal thereof is not rendered appealable by statute, the appeal is not properly before us.
The appeal from the order of the Court of Common Pleas is quashed as interlocutory.
NOTES
[1] In neither Bagshaw v. Vickers, supra, nor the instant case did any party challenge the jurisdiction of this court to resolve the controversy. However, in Bagshaw this Court addressed the issue of the appealability of the trial court's order sua sponte, and we do the same.
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343 S.W.2d 950 (1961)
CITY OF SAN ANTONIO, Appellant
v.
Oscar ANDERSON et al., Appellees.
No. 3571.
Court of Civil Appeals of Texas, Eastland.
February 24, 1961.
Rehearing Denied March 17, 1961.
Carlos C. Cadena, City Atty., San Antonio, for appellant.
Park Street, San Antonio, for appellees.
COLLINGS, Justice.
This is a condemnation suit. It is stipulated that the condemnation proceedings instituted by the City of San Antonio were in all things proper and legal. The question in controversy before the trial court was the amount of damages to which defendants Oscar Anderson and wife, Fidelia C. Anderson, were entitled for the taking of their property. The trial was before a jury and judgment was entered for the Andersons on the basis of the verdict. The City of San Antonio has appealed.
Appellant presents two points of error in which it is urged (1) that the court "erred in overruling appellant's motion for mistrial because said motion undisputedly showed bias and prejudice on the part of a juror, even prior to deliberation in the jury room", and (2) that "appellant was precluded from presenting the issue of jury misconduct to the trial court as the term of court expired the day judgment was entered"; that appellant was materially prejudiced thereby and relies on Rule 329a, Texas Rules of Civil Procedure, for relief.
*951 The jury was selected and trial commenced on January 18, 1960. On January 21 appellant City of San Antonio filed a motion for mistrial in which it was alleged that during the afternoon of the preceding day, to-wit: January 20, 1960, one of the jurors, namely Cora Schwalm, approached the attorneys in the case and informed them, in effect, that if any future expressway encompassed property owned by her and the city tried to do what they were doing to the Andersons, she would "raise sand". The allegations of fact set out in the motion for mistrial were sworn to by two of the attorneys for the city and a witness for the city, to all of whom it was alleged the statement was made. The motion for mistrial was overruled. The order overruling the motion was in general terms and made no specific fact finding concerning whether the matters alleged in the motion actually occurred. The only indication in the court's order of the basis for its action was the provision that "such motion is without merit." There are no bills of exception in the transcript, nor is there anything in the statement of facts to show that the allegations of jury misconduct set out in the motion for mistrial actually occurred. There is no showing that any evidence was heard on the motion for mistrial. The affidavit attached to the motion was ex parte and was a part of the pleadings. It was not available as evidence in support of the motion. The burden was on appellant to show the alleged misconduct. The record is silent on the question and appellant has failed to meet its burden. Appellant's first point is overruled.
We also overrule appellant's second point contending and complaining of the fact that appellant was precluded from presenting the issue of jury misconduct to the trial court because the term of said court expired the day judgment was entered and that appellant was materially prejudiced thereby. As previously indicated, the trial commenced on January 18, 1960, and appellant's motion for mistrial was filed on January 21, 1960. Thereafter on the same day the charge of the court was submitted to the jury and the verdict was received by the court. The record shows that judgment was entered January 29, 1960. However, it is conceded by both parties that judgment was rendered and entered on January 30, 1960, which was the last day of the term of court. On February 8, 1960, appellant gave notice in writing of its intention to appeal from the judgment and filed such notice with the clerk of the court. No motion for new trial was filed by appellant. Appellant relies upon Rule 329a, T.R.C.P., to show that it was precluded from presenting a motion for new trial due to the expiration of the court's term and to excuse the failure to file such motion as a prerequisite to appeal. Rule 329a provides as follows:
"Motion for new trial when required in any case tried in a County Court shall be made within ten (10) days after the rendition of judgment if the term of court shall continue so long, if not, then before the end of the term, and may be amended under leave of the court. Such motions for new trial, original or amended, shall be determined at the term of the court, at which made. Provided, however, that if there is not remaining in the term five full days' time from the rendition of the judgment to the adjournment of the court for the term in which the judgment is rendered, the filing of a motion for new trial shall never be prerequisite to an appeal in case tried in a county court."
The record unquestionably shows that there was "not remaining in the term five full days from the rendition of the judgment to the adjournment of the court." Appellant was, therefore, by the terms of Rule 329a clearly excused from the necessity of filing a motion for new trial as a prerequisite to appeal. An appellant, however, has the burden of establishing any claimed jury misconduct and probable injury resulting therefrom. Rule 327, T.R. *952 C.P.; 41-B Tex.Jur. 417; Texas Employers Insurance Ass'n v. Phillips, Tex.Civ.App., 255 S.W.2d 364; City of Fort Worth v. Estes, Tex.Civ.App., 279 S.W.2d 687.
Numerous acts of misconduct in the jury room are urged in appellant's brief, but there is no showing in this record that any jury misconduct occurred. In addition to what has already been shown, appellant is, in effect, trying to perfect the record and show facts establishing misconduct in the jury room by presenting affidavits attached to its briefs in this court. Appellant apparently seeks to justify its attempt to establish jury misconduct by affidavits, presented for the first time in an appellate court by showing that there was insufficient time between the jury verdict, the judgment and the expiration of the court's term in which to present a motion based on jury misconduct and to obtain and present evidence to the trial court in support thereof.
It is asserted in appellant's brief that only after diligent investigation was it able to ascertain that the juror, Cora Schwalm, had committed prejudicial misconduct in the jury room. The only showing of such claimed misconduct is by exhibits attached to appellant's brief. These exhibits are "A", an affidavit by the juror Cora Schwalm dated February 11, 1960, and "B", an affidavit by another juror in the case dated June 1, 1960, both of which indicated numerous prejudicial acts of misconduct in the jury room by the said Cora Schwalm. Also attached to appellant's brief is Exhibit "C" which is an affidavit by an investigator for the city to the effect that although he diligently sought to do so he was unable to secure the affidavit of Cora Schwalm before February 11, 1960.
Assuming for the sake of argument (which assumption in our opinion is not supported by the record) that appellant was precluded from presenting the issue of jury misconduct to the trial court because the term of court expired on the day judgment was entered, appellant has cited no authority in support of the contention that jury misconduct constituting reversible error may be shown in the manner here attempted. On the contrary, it is held that a complaint concerning jury misconduct will not be considered by an appellate court unless the record shows the existence of such misconduct. Vilbig v. Faison, Tex.Civ. App., 296 S.W. 669; 3 Tex.Jur.2d 648, 678. An appellate court may not assume the existence of facts not shown by the record. McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649. Matters outside the record attempted to be shown by affidavits, or the like, as here attempted by appellant, may not be considered. Brown v. Torrey, 22 Tex. 54. This record is silent concerning the existence of any jury misconduct.
Actually the record does not show that appellant was precluded from timely presenting the complaint of jury misconduct to the trial court because of the expiration of the term on the same day judgment was entered. From the time the verdict was returned until the last day of court there was a period of 8 or 9 days. Appellant knew, or should have known, when the term of court would expire and his duty under the Rule was clearly set out. The affidavit of the juror Schwalm was not obtained until February 11, or after the expiration of 10 more days and the affidavit of the other juror was not obtained until June 1, 1960. Even if the term had continued until June 1, appellant did not, and by its own admission could not have made its motion for new trial based upon the claimed jury misconduct within 10 days after rendition of the judgment as required by Rule 329a. Obviously, he was not precluded from timely presenting his complaint of jury misconduct to the trial court because of the expiration of the term on the day of or the day after the judgment. For the reasons stated, appellant's second point is overruled.
The judgment is affirmed.
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343 S.W.2d 223 (1960)
George W. HUTCHINS, Appellant,
v.
SOUTHVIEW GOLF CLUB, INC., a Corporation, Respondent.
No. 23201.
Kansas City Court of Appeals, Missouri.
December 5, 1960.
Rope, Shanberg & Rope, Arnold N. Shanberg, Herbert M. Rope, Jack L. Eisen, Kansas City, for appellant.
Hogsett, Houts, James, Randall & Hogsett, Thad C. McCanse, Kansas City, for respondent.
BROADDUS, Judge.
We adopt, as does respondent, appellant's statement of the facts here involved. Said statement is as follows:
"The within cause is an action for damages. On October 28, 1959, Appellant instituted the action by filing his petition alleging that the defendant was a corporation operating a public golf course in Jackson County, Missouri, and that it offered threewheel golf carts for rent in order to transport patrons on its course; that on or about June 27, 1959, the plaintiff, for a monetary consideration, became a business invitee upon said course and rented a cart for the purpose aforesaid. The petition *224 further states that immediately thereafter, while embarking- upon the use of such cart, the front wheel support, fork or shaft thereof, which was concealed and covered, suddenly and violently broke and collapsed without notice, causing the cart to stop suddenly and causing plaintiff to be hurled over the front of said cart, causing him to sustain the injuries alleged. The nature and extent of the injuries are not an issue for the purpose of the within appeal.
"Said petition further recited that the golf cart and the covered and concealed mechanical parts, including the front wheel support were in the sole possession, custody and control, or right of control of the defendant and that the plaintiff relied upon the defendant for its maintenance, care and inspection and that he had no control or knowledge or means of knowledge of the cart or its covered mechanical parts.
"On December 2, 1959, defendant filed its Motion to Make More Definite and Certain, seeking to have the plaintiff state who was driving the cart at the time of the alleged accident and further seeking that plaintiff state specifically in what manner the defendant was negligent. On January 26, 1960, said motion was sustained and plaintiff was granted fifteen days to plead.
"On February 1, 1960, plaintiff filed his First Amended Petition in substantially the form of the original petition except that the same set forth that plaintiff was driving the cart at the time of the accident and that the accident occurred on the first fairway and within 500 yards from the place of the delivery of the cart.
"On February 11, 1960, defendant filed its Motion to Strike the First Amended Petition and for Dismissal on the basis that Plaintiff had not complied with the Court's former order to make more definite and certain. Thereafter, on February 29, 1960, said motion was sustained and Plaintiff's first amended petition was ordered dismissed without prejudice at plaintiff's costs and execution issued therefor. Plaintiff has appealed."
Inasmuch as the trial court dismissed plaintiff's action this is a judgment from which plaintiff has a right to appeal. Douglas v. Thompson, Mo.Sup., 286 S.W.2d 833.
The question here presented is whether or not under the facts pleaded plaintiff-appellant is entitled to the benefit of the res ipsa loquitur doctrine. It cannot be denied that a motion to make a petition more definite and certain should be sustained where the petition pleads general negligence, and the res ipsa loquitur doctrine does not apply. Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654.
One of the necessary elements in a res ipsa loquitur case is that the thing causing the injury must be under the control of the defendant at the time of the injury. Maybach v. Falstaff Brewing Corporation et al., 359 Mo. 446, 222 S.W.2d 87; Hall v. Lewis, 364 Mo. 1096, 272 S.W.2d 260, 261. Therefore, if plaintiff's first amended petition does not state facts which show that defendant had control or right of control at the time the injury occurred, the doctrine of res ipsa loquitur will not apply.
Here, instead of the petition demonstrating control on the part of defendant, it shows that control was actually in the hands of plaintiff at the time of the occurrence. The facts alleged are that plaintiff rented the cart and drove it from the place of delivery out onto the golf course. The casualty occurred within 500 yards from where plaintiff obtained the cart. Plaintiff's petition is silent as to how long he was in possession of said golf cart, but it is clear that he was driving it at the time that the fork or the shaft broke.
We quote the following from the Maybach case, supra [359 Mo. 446, 222 S.W.2d 90].
"An essential element of the res ipsa doctrine is that proof of the occurrence and *225 attendant circumstances shall point, prima facie, to negligence on the part of the defendant. Such proof cannot, without further proof, point to the negligence of a defendant who is entirely out of control of the instrumentality at the time it causes the injury. Such proof may tend to indicate negligence on the part of some one, but further proof is necessary to definitely fix the blame on the defendant by excluding causes for which he is not responsible."
In the Hall case, supra, defendant drove his car into an automatic car washing establishment, stopped and left the motor running. He got out of the car and as a passenger was getting out the car lurched forward, breaking plaintiff's leg. It was held that defendant surrendered control of the car when he drove it into the car washing establishment. The court put the question this way: "Was plaintiff entitled to submit his case under the res ipsa loquitur doctrine? We think not. One of the basic elements of the res ipsa loquitur doctrine is that the instrumentality causing the injury must be under the control of the defendant." There is no need to set forth the many additional cases to the same effect.
The judgment is affirmed.
All concur.
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181 Conn. 201 (1980)
DEER ISLAND ASSOCIATION
v.
PEARL C. TROLLE
Supreme Court of Connecticut.
Argued March 13, 1980.
Decision released June 10, 1980.
COTTER, C. J., BOGDANSKI, PETERS, HEALEY and PARSKEY, JS.
*202 Arthur T. Fattibene, with whom was David Snyder, for the appellant (plaintiff).
Charles F. Brower, for the appellee (defendant).
PARSKEY, J.
The central issue involved in this appeal is whether a strip of land ten feet wide owned by the plaintiff's predecessor in title was acquired by the defendant by adverse possession. The trial referee resolved this issue in favor of the defendant and the plaintiff has appealed.
"Title to realty held in fee by a state or any of its subdivisions for a public use cannot be acquired by adverse possession.... Adverse possession will run against a municipality, however, as to land which is not held for a public use." (Citations omitted.) Goldman v. Quadrato, 142 Conn. 398, 402-403, 114 A.2d 687 (1955). The plaintiff claims that because the land in dispute was being held for a public use, title by adverse possession could not be acquired. To determine whether the claim of public use is firmly based we turn to the finding filed by the trial referee.
The plaintiff has mounted a broad scale attack on the finding. It faults the court for failing to include eighteen paragraphs of the draft finding which it claims set forth undisputed facts and for finding facts in eighteen paragraphs either without evidence or contrary to the evidence. The plaintiff's challenge does not stand up to careful analysis. Facts will not be added unless they are undisputed *203 and material. Cutler v. MacDonald, 174 Conn. 606, 609-10, 392 A.2d 476 (1978). Omissions will not be corrected if the change sought amounts to a request that we accept the appellant's version of the facts. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976). Nor will corrections be made by adding facts already included in the finding in different language. Cleveland v. Cleveland, 165 Conn. 95, 96, 328 A.2d 691 (1973). The additions being sought all fall into one or more of the above categories. A single example will suffice. One paragraph of the draft finding categorically states that there always was a twenty foot strip of land between the eastern boundary of the defendant's land and a lot formerly owned by the common owner of both parcels. It is undisputed that there once was a twenty foot strip between these parcels. The question in dispute was whether ten feet of this strip was acquired by the defendant by adverse possession. Facts alleged in a draft finding do not become subject to the categorical imperative on the basis of a selective inclusion of claimed admissions in the appendix to the brief. As for the proposed deletions, because the facts contained in these paragraphs are supported by the evidence printed in the appendix to the appellee's brief; El Idrissi v. El Idrissi, 173 Conn. 295, 297, 377 A.2d 330 (1977); there is no justification for correction of the finding in this respect.
The plaintiff also challenges two evidentiary rulings. The first, which involves the admissibility of a declaration of Herbert Trolle referable to a conversation between two directors of Deer Island Company and John Alfred Trolle has not been preserved on appeal for failure of the plaintiff to take *204 an exception to the court's ruling. El Idrissi v. El Idrissi, supra, 300. The second challenge, which involves the admissibility of tax records, also fails. Such records are admissible on the question of adverse possession. Merwin v. Backer, 80 Conn. 338, 345, 68 A. 373 (1907).
The finding supports the following facts: The plaintiff was constituted by special act in 1929 as a body politic and corporate and was vested with certain powers including the power to "lay out, construct, accept and own roads and passways within its limits...." 20 Spec. Acts 790, No. 254. Deer Island, which is situated on Bantam Lake in the town of Morris, was originally laid out as a subdivision in 1908 by the W. M. Hurlburt Company (hereinafter Hurlburt). The land in dispute is part of a parcel of land twenty feet in width and approximately 145 feet in length, bounded north and south by a roadway, now Island Trail East, and Bantam Lake, respectively, on the east by Lot No. 92 in the subdivision and on the west by land of the defendants. In 1928, the twenty foot parcel was conveyed by Hurlburt to Deer Island Company, the plaintiff's predecessor in title. The deed, which described the parcel by courses and distances, did not characterize it as a passway. In 1933, by quitclaim deed, Deer Island Company conveyed to the plaintiff all the passways "shown on a certain map of Deer Island located in the Town of Morris made by Frank J. Smyth, Surveyor, dated January 6, 1930, and on file in the Office of the Town Clerk of Morris." This map shows a ten rather than a twenty foot strip, designated as a passway, in the area in question. This map also shows the passway as being bounded on the west by land of Julia *205 Trolle, successor in title of John Alfred Trolle. The western ten feet of the original twenty foot strip was never deeded to Julia Trolle.
The area in dispute was never monumented, used for any public purpose, or maintained by the plaintiff, nor did it engage in any acts of possession in this area. It was never used by any member of the plaintiff's association in connection with boating, fishing or recreational purposes. It would have been impassable as a fire lane for many years and was impassable at the time of trial because of the existence of three large trees.
The defendant is a successor in title to John Alfred Trolle, who received his conveyance from Hurlburt in 1920. The land, which was described as being located twenty feet westerly from Lot 92, ran sixty feet along the northerly passway, now Island Trail East. Its southerly boundary ran eighty feet in the line of the shore of Bantam Lake. The deed to Trolle did not describe the twenty foot strip adjoining the easterly line as a passway but as "land of the W. M. Hurlburt Company."
In the summer of 1929, Judge Church and Judge Peaslee, then believed by Herbert Trolle to be directors of the Deer Island Company, told John Alfred Trolle that there had been an error made on the other side of the island in laying out the lots and asked if the Trolles would be willing to have the passway reduced to ten feet. Thereafter, two boulders were placed in the vicinity of what Trolle understood to be the passway and a one and one-quarter inch pipe was placed at the lakefront; John Alfred Trolle and his successors in title believed the westernmost boulder and the one and one-quarter inch pipe marked the line between his property *206 and the Deer Island Company's property. The use by the defendant and her predecessors in title of the area west of this line for access to boating and swimming, dock storage, boat storage, lawn seeding, and maintenance was open, visible, exclusive, under a claim of right and continuous for forty-six years.
According to the deeds, the southerly line of Lot 92 along the shore of Bantam Lake measures 100 feet. The southerly line of the defendant's property measures eighty feet from the one and one-quarter inch pipe along the shore of Bantam Lake, as called for by the original deed to John Alfred Trolle. Giving Lot 92 its 100 feet and the Trolle land its eighty feet, there remains between the iron pipe and the west line of Lot 92 eleven feet for the ten foot passway.
Although the Deer Island Company received title to a twenty foot strip of land, it conveyed to the plaintiff a ten foot passway. The plaintiff's claim that the ten foot strip designated in the Smyth map was obviously an error is not borne out by the record. It is apparent that in 1929 the Deer Island Company recognized a discrepancy between the lot measurements as shown on the Hurlburt plan and the measurements on the ground. As a result of this discrepancy the Trolle property and the Deer Island Company strip, which were supposed to be adjoining, in fact overlapped. The directors of Deer Island Company, aware of this problem, proposed to "reduce" their strip by ten feet. This proposal was followed by the preparation of the Smyth map, the placing of two boulders at the north end of the passway and the placing of an iron pin on the lake side, which monuments are consistent with a ten foot passway.
*207 As we stated earlier, title by adverse possession cannot be acquired with respect to land held for a public use. To be so held, however, there must be at the very least an implied dedication and acceptance. A & H Corporation v. Bridgeport, 180 Conn. 435, 439, 430 A.2d 25 (1980). The record is barren of any evidence that the land in dispute was ever dedicated to a public use. Title to the land could, therefore, be acquired by adverse possession. The defendant's exclusive occupancy and use of the land for a variety of purposes between 1933 and 1972 was continuous, under a claim of right, open, visible and without the license or consent of the plaintiff. See Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968). Thus, the trial referee correctly concluded that the defendant has acquired title to the land in dispute.
There is no error.
In this opinion the other judges concurred.
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623 F. Supp. 597 (1985)
Joseph H. SOLIEN, Regional Director of Region 14 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
CARPENTERS DISTRICT COUNCIL OF GREATER ST. LOUIS, AFL-CIO, Respondent.
No. 85-2259C(1).
United States District Court, E.D. Missouri, E.D.
December 19, 1985.
*598 Keltner W. Locke, N.L.R.B., Region 14, St. Louis, Mo., for petitioner.
Morris J. Levin, St. Louis, Mo., for respondent.
MEMORANDUM
NANGLE, Chief Judge.
This matter is before the Court on the petition of the Regional Director of the National Labor Relations Board (the Board) for an injunction under Section 10(1) of the National Labor Relations Act, 29 U.S.C. § 160(1) (1982) (NLRA). The Board seeks an injunction pending final disposition of these matters by the Board. The Board alleges that handbilling conducted by the Carpenters District Council of Greater St. Louis, AFL-CIO (the union) violates Section 8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(4) (1982).
On October 1, 1985, a hearing was held before this Court. Having considered the pleadings, the testimony of the witnesses, the documents in evidence, and the stipulations of the parties, and being fully advised in the premises, this Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Sometime after October 5, 1984, the union distributed a leaflet at the Port *599 Apartments, located at Baumgartner and Telegraph Roads in St. Louis County, Missouri. These apartments were being constructed by Barnett Range and various subcontractors in its employ. The leaflet mentions an Oklahoma construction company doing "carpenter framing". The parties agree this reference is to Rinker and Yocham Construction.
2. On or about October 9, 1984, Barnett Range filed with the St. Louis Regional Office of the National Labor Relations Board a charge against the union for violation of Section 8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(4). This charge pertained to the union's conduct at the Port Apartments.
3. On October 12, 1984, the St. Louis Regional Office of the National Labor Relations Board sought an injunction under Section 10(1) of the NLRA, 29 U.S.C. § 160(1) alleging that the Board had reasonable cause to believe that the union had violated Section 8 of the Act.
4. On or about November 5, 1984, by an informal settlement agreement the union agreed not to picket the Port Apartments job site. The St. Louis Regional Director of the National Labor Relations Board approved this settlement on November 7, 1984.
5. On January 30, 1985, the Honorable Clyde S. Cahill, United States District Judge, dismissed the Board's petition for a temporary injunction in that matter.
6. Construction has been completed at the Port Apartments job site. Tenants now occupy some apartments, and Barnett Range seeks to rent the remaining apartments. Barnett Range owns and operates the Port Apartments.
7. On or about August 1, 1985, the union began distributing handbills to persons driving in and out of the Port Apartments complex. Individuals were given copies of the handbill which appears as Appendix 1 of this memorandum. As a result of the handbilling, some individuals have turned away without examining or leasing the apartments. Handbilling at the Port Apartments has continued every day since it began, except for Labor Day. This activity arises out of the union's dispute over wages paid by Rinker and Yocham.
8. On June 8, 1984, Barnett Range filed with the Department of Public Works of St. Louis County, Missouri its application for a building permit for construction of the Port Apartments. The application detailed the construction of the outer perimeter walls of the Port Apartments.
9. Section 1225.5 of the Building Code adopted by St. Louis County provides for the use of anchor bolts in certain construction.
10. By a letter dated October 12, 1984, the architect for Barnett Range sought authorization to use Hilty nails rather than anchor bolts. On October 15, 1984, St. Louis County authorized this modification.
11. On May 2, 1985, an architect for Barnett Range sought approval of another fastner, the Red Head No. 12884 anchor. On May 6, 1985, St. Louis County approved this modification.
12. By letter of May 6, 1985, an architect for Barnett Range notified St. Louis County that washers had not been installed along with the Red Head anchors and requested that St. Louis County approve the installation of the anchors without washers. On June 5, 1985, St. Louis County approved the anchors which had already been installed. St. Louis County has not brought suit against any party for violations of its building code as a result of the construction practices used at the Port Apartments. When each apartment was rented, St. Louis County issued occupancy permits and the county has never denied such a permit.
13. Rinker and Yocham left the Port Apartments project in mid-July, 1985 and began working for Barnett Range at another job site approximately 32 miles away.
14. On August 13, 1984, a meeting was attended by Russell Barnett, President of the Midwest Division of Barnett Range; Ollie W. Langhorst, Executive Secretary-Treasurer of the Carpenters' District Council *600 of Greater St. Louis; Morris J. Levin, attorney for the union; and Timothy L. Stalnaker, attorney for Barnett Range. At the meeting Russell Barnett discussed past problems with Rinker and Yocham and his company's intention to use Rinker and Yocham for framing or rough carpentry work. Barnett explained that though Rinker and Yocham would bring in Oklahoma workers and pay lower wages, Barnett Range would hire union carpenters for finish carpentry work.
15. Of the 35 subcontractors used by Barnett Range at the Port Apartments, 27 subcontractors had offices in Missouri and used Missouri, mostly St. Louis, employees.
CONCLUSIONS OF LAW
This Court has jurisdiction under Section 10(1) of the NLRA, 29 U.S.C. § 160(1). Respondent is a labor organization as defined by Sections 2(5), 8(b), and 10(1) of the NLRA.
In deciding whether to grant an injunction under Section 10(1), the court need not decide whether an unfair labor practice occurred, only whether there is reasonable cause to believe that an unfair practice occurred. To carry its burden, the Board must establish that the legal issues involved are substantial and non-frivolous. Hendrix v. International Union of Operating Engineers Local 571, 592 F.2d 437, 442 (8th Cir.1979). If the Court finds reasonable cause to believe that an unfair labor practice occurred, it must then determine whether equitable relief is just and proper. Injunctive relief is just and proper when the circumstances of the case create a reasonable apprehension that the remedial purposes of the statute will be frustrated in the absence of such relief. Wilson v. Milk Drivers and Dairy Employees Union Local 471, 491 F.2d 200, 203 (8th Cir. 1974) (citing Minnesota Mining & Manufacturing v. Meter, 385 F.2d 265, 272 (8th Cir.1967)).
To obtain equitable relief, the Board must prevail on three issues. First, the Board must establish a violation of Section 8 that is, that the union threatened, coerced, or restrained Barnett Range with the object of forcing or requiring Barnett Range to cease doing business with Rinker and Yocham. Second, the Board must overcome the union's defense based on the publicity proviso contained within Section 8(b). Third, the Board must adequately answer the union's claim of First Amendment protection.
I.
As the Board argues, the union's handbilling violates Section 8(b), because through the handbilling the union attempts to inflict economic harm on Barnett Range, a secondary employer. The union argues that peaceful and orderly distribution of handbills, which informed consumers of substandard wages and construction flaws, cannot be considered a violation of Section 8(b).[1]
Section 8(b) provides that it shall be an unfair labor practice for a labor organization or its agents to force or require any person to cease using or otherwise dealing in the products of any other producer or to cease doing business with any other person.[2]
*601 The statute does not prohibit all actions by unions at secondary employer sites. In NLRB v Fruit & Vegetable Packers Local 760, 377 U.S. 58, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1964) (Tree Fruits), the union picketed outside a grocery store to persuade consumers not to purchase a product offered for sale by the store and produced by an employer with whom the union had a dispute. Finding no violation of the statute, the Supreme Court held that when consumer picketing is employed only to persuade customers not to buy the struck product, the union's appeal is closely confined to the primary dispute. The secondary employer's purchases from the struck firm are decreased only because the public has diminished its purchases of the struck product. In contrast, when a union pickets to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on its business generally. This pressure creates a separate dispute with the secondary employer, a result the statute seeks to avoid. 377 U.S. at 72, 84 S.Ct. at 1071.
The Tree Fruits doctrine has limited application in construction cases. Unlike the products at a grocery store, the work of a subcontractor merges with the work of the general contractor and developer. Consequently, publicity directed against a subcontractor embroils the general contractor and developer in the labor dispute.
In Hoffman v. Cement Masons Union Local 337, 468 F.2d 1187 (9th Cir.1972), cert. denied, 411 U.S. 986, 93 S. Ct. 2269, 36 L. Ed. 2d 964 (1973), the Ninth Circuit granted the Board's petition for enforcement and held union picketing and handbilling designed to publicize the payment of substandard wages by the general contractor to be unlawful. Whitney, the general contractor and primary employer, built subdivision homes owned and sold by Shuler, the developer and secondary employer. These homes were Shuler's sole product at the site of the union's activity. The union's signs did not identify Whitney as the primary employer. The Ninth Circuit found the union's actions unprotected by the Tree Fruits doctrine. Since Shuler offered only one product at the site of the picketing, consumers who supported the union could respond only by refusing to transact any business whatsoever with Shuler. As a result, Shuler would cease doing business with Whitney. Though the court recognized the interests of the union in its dispute with the general contractor, the court found that the statute favored the interest of the secondary employer. When a union's interest in picketing a primary employer at a single product site conflicts with the need to protect neutral employers from the labor disputes of others, the interests of the neutral employer prevail. 468 F.2d at 1191. Similarly, in K & K Construction Company v. NLRB, 592 F.2d 1228 (3rd Cir.1979), the Third Circuit vacated an order of the Board upholding picketing at the sales office of a housing developer. Unlike Cement Masons, the signs used by the picketers clearly identified the union's dispute as one with the subcontractor and not the housing developer. Nevertheless, the Third Circuit found the Tree Fruits exception unavailable where the sole product of the secondary employer contains the product of the primary employer, the so-called merged product doctrine. When the consumer cannot separate the struck product from the secondary employer, courts find the union activity coercive toward the secondary employer. 592 F.2d at 1232. See C. Morris, The Developing Labor Law 1119-24 (2d Ed.1983); see also NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, 100 S. Ct. 2372, 65 L. Ed. 2d 377 (1979) (Safeco) (finding coercion where the struck product accounted for 90% of the secondary's business).
At the Port Apartments, Barnett Range sells only apartments on which Rinker and Yocham performed rough carpentry work. Therefore, consumers can respond to the union's handbills only by refusing to rent an apartment at the Barnett Range development. *602 If the union succeeds, Barnett Range will stop using Rinker and Yocham in response to pressure designed to inflict injury on the business of Barnett Range generally. Because consumers cannot separate the product of the primary and secondary employers, the union creates a separate dispute with Barnett Range, the secondary employer. Indeed, the facts indicate that the handbills succeeded in dissuading some customers from examining or leasing the apartments. See Findings of Fact No. 7. Moreover, during the handbilling Rinker and Yocham were working at another site miles away. See Findings of Fact No. 13. By handbilling at the Port Apartments, the union sought to force Barnett Range to stop using Rinker and Yocham on the other construction project. Thus, the union's activities violate § 8(b) unless protected by the publicity proviso of that section of the Act.
II.
The union argues that its activities are protected by the publicity proviso of Section 8(b). The Board denies that the union's activities fall within the exemption of the publicity proviso, because the handbills contain untruthful information, do not identify the dispute with the primary employer and the secondary employer's relationship to it, and contain information unrelated to the primary dispute.
The publicity proviso applies to communications, other than picketing, that are truthful and do not produce either an interference with deliveries or work stoppage by employees of any person other than the firm engaged in the primary labor dispute.[3]Edward J. Debartolo Corp. v. NLRB, 463 U.S. 147, 155, 103 S. Ct. 2926, 2932, 77 L. Ed. 2d 535 (1983). Also, the publicity proviso requires that handbills advise the public that a product is produced by an employer with whom the labor organization has a primary dispute and is distributed by another employer. The parties do not dispute that the union's handbilling constitutes an activity other than picketing or that the handbilling did not interfere with deliveries or produce a work stoppage. Nor do they dispute that Rinker and Yocham produced a product distributed by Barnett Range.[4]
The publicity proviso protects only truthful information. This limitation requires the Court to inquire into the factual basis of the handbill's claims. A handbill is truthful so long as it does not substantially depart from fact or intend to deceive. *603 Central Industrial Building and Constructions Trades Council (K-Mart Corp.), 257 N.L.R.B. 86, 88, 107 L.R.R.M. (BNA) 1463 (1981). The union need only establish a reasonable basis for the information contained in its handbills. See Allentown Racquet Ball & Health Club v. Building and Construction Trades Council of Lehigh, 525 F. Supp. 156, 162-63 (E.D.Pa. 1981) (unions which appeal to the public based upon an alleged violation of area standards must have a reasonable basis for believing that the standards are being violated).
The Board contends that the handbills contain at least several factual inaccuracies. First, as the handbill states, the Port Apartments were not built under full compliance with the county building codes. The Board attaches great importance to the fact that St. Louis County has not sued Barnett Range for violation of the building code and has issued occupancy permits for each of the apartments in the Port Apartments complex. See Findings of Fact No. 12. In addition, the Board submits that the use of Hilty nails and Red Heads fasteners, rather than anchor bolts, did not violate the building code, because the code permits building officials to approve alternative materials. See Findings of Fact Nos. 9, 10, 11 and 12. In response, the union argues that the construction did not comply with the requirements of the code, because construction workers failed to install a washer necessary when using Hilty nails. As the union argues, the county excused the use of washers by waiving the requirements of the code. In effect, the union argues, the county agreed to approve construction and not sue for violations even though the apartments did not meet the code. Second, the back of the handbill refers to a statement made by Hal Barnett at a meeting with union representatives. The testimony of Russell Barnett established that he, not Hal Barnett, attended the meeting to which the handbill refers. In the only evidence concerning that meeting, Russell Barnett denied making the statement quoted in the handbill. The Court credits his testimony. At the meeting, Barnett discussed past dissatisfaction with the work of Rinker and Yocham but denied any current problems. Barnett also discussed his desire for union carpenters to perform the finish carpentry work.[5]See Findings of Fact No. 14. Third, as the front of the handbill states, the contractor did not employ St. Louis construction workers but shipped in lower-paid, underskilled workers from Oklahoma. This statement, the Board contends, confuses the general contractor and neutral Barnett Range with the subcontractor Rinker and Yocham.
Regarding compliance with building code, the proper characterization of the actions of the County is a close question. This Court finds that the union has established a reasonable basis for believing that the apartments were not built in full compliance with the building code. Regarding the other alleged inaccuracies, this Court finds that the union has not satisfied the liberal reasonable basis standard. The union misquoted the statements made by Russell Barnett at the meeting.[6] First, Barnett denies making the statement attributed to him. Second, all parties to the meeting were familiar with the terminology used in the construction industry. They knew that in the context of their discussion "rough work" was not the equivalent of "sloppy work" but instead referred to the framing at the building. Thus, Barnett's request for union carpenters to cover rough work does not provide a reasonable basis for the quote in the handbill. Regarding the use of Missouri workers, the evidence establishes that Barnett Range used numerous Missouri construction workers. See Findings of Fact No. 15. Though the union may have intended the *604 "contractor" to refer to Rinker and Yocham, when considered in context the reference is misleading and deceptive to the point of being false.
In addition to containing false statements, the union's handbill fails to satisfy the publicity proviso on other grounds. The only publicity exempted from the prohibition of Section 8 is publicity intended to inform the public that the primary employer's product is distributed by the secondary employer. 463 U.S. at 155, 103 S.Ct. at 2932. The dispositive factor is the probable effect of the picketing upon the consumer. NLRB v. Twin City Carpenters District Council, 422 F.2d 309, 314 (8th Cir.1970); see Cement Masons, 468 F.2d at 1192. Furthermore, publicity must be exclusively for the purpose of truthfully advising the public. The Ninth Circuit has interpreted this phrase as strictly limiting publicity to that which advises the public of the nature of the dispute and the secondary employer's relationship to it. Hospital & Service Employees Union Local 399 v. NLRB, 743 F.2d 1417, 1422 (9th Cir.1984). If the handbill contains information unrelated to the primary dispute, the handbill falls outside the protection of the publicity proviso. 743 F.2d at 1424. This limitation applies regardless of whether the unrelated information is truthful or the handbills properly identify the primary dispute. Thus, to be covered by the proviso, the handbills must (1) identify the dispute with the primary employer and the secondary employer's relationship to it, and (2) not contain information unrelated to the primary dispute.
First, the front of the handbill does not name the contractor with whom the union has its dispute. The back of the handbill quotes Hal Barnett of Barnett Range as saying that his non-union carpenters are fast but do sloppy work and identifies Barnett Range as a contractor on an apartment project underway in South County. These statements could lead consumers to believe that Barnett Range was the primary employer in the union's dispute. Though the handbill notes that Rinker and Yocham intended to pay substandard wages, the handbill does not identify the relationship between Rinker and Yocham and Barnett Range. Therefore, the handbill fails to identify the dispute and the secondary's relationship to it.
Second, the front of the handbill, in words and pictures, informs consumers that anchor bolts were not used in the construction of the Port Apartments. The back of the handbill discusses the relative load carrying capacities of Hilty nails and anchor bolts and the requirements of the county building code. This material does not relate to the union's complaint over non-union wages. Therefore, the handbill contains information unrelated to the primary dispute, the substandard wages paid by Rinker and Yocham. Consequently, the publicity proviso does not exempt the union and its handbill from a violation of Section 8.
III.
The union raises the First Amendment in defense of its activities. The union poses the issue for decision as whether the First Amendment permits an absolute ban on non-picketing publicity to inform consumers of substandard construction wages. This misstates the issue. Here, the Court must decide a narrower question whether applying Section 8(b)(4)(ii)(B) to the handbilling in this case violates the First Amendment. In particular, this Court must address whether the First Amendment protects a coercive handbill which contains untrue and misleading information. This Court concludes that it does not.
As the Supreme Court held in Safeco, Section 8(b)(4)(ii)(B) imposes permissible restrictions upon constitutionally protected speech when applied to publicity that predictably encourages consumers to boycott a secondary business. 447 U.S. at 616, 100 S.Ct. at 2378. This Court finds no reason to depart from that holding.
A number of factors persuade the Court to reach this conclusion. First, the union's handbills were directed toward a neutral *605 employer with an intent to force the neutral to cease business with the primary employer. Second, since the handbills turned away some consumers, the handbills achieved the proscribed objective of spreading the dispute to a neutral employer. Third, the handbill contained false and deceptive statements. Given these facts, this Court is reluctant to hold unconstitutional congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife. See Safeco, 447 U.S. at 617-18, 100 S.Ct. at 2378-79 (Blackmun, J., concurring in judgment).[7]
For the above reasons, this Court enjoins continued distribution of this handbill by the union at the Port Apartments complex.
ORDER
Pursuant to the memorandum filed herein this day,
IT IS HEREBY ORDERED that the respondent, its officers, representatives, agents, servants, employees, attorneys, and all members and persons acting in concert or participation with them be and are enjoined from threatening, coercing, or restraining Barnett Range Corporation or any person engaged in commerce or in an industry affecting commerce by handbilling, picketing, orders, directions, instructions, requests, or appeals at or in the vicinity of the Port Apartments residential apartment complex of Barnett Range Corporation at 2514 Deloak Drive, St. Louis County, Missouri, where an object thereof is to force or to require Barnett Range Corporation to cease using, selling, handling, transporting, or otherwise working on the products of, or to cease doing business with, Oscar Rinker and Gary Yocham, doing business as Rinker and Yocham Construction, pending the final disposition of the matters involved herein by the National Labor Relations Board.
IT IS FURTHER ORDERED that respondent's motion to reopen the record be and is granted. The exhibits submitted with that motion are hereby admitted.
*606 APPENDIX I
*607
NOTES
[1] The union argues that its handbilling is not secondary activity. As the union asserts, Barnett Range is not a neutral employer, because Barnett Range served as owner and general contractor of the Port Apartments. This Court disagrees. Essentially, the present activities continue the union's dispute of 1984. The union's dispute concerns the wages paid by Rinker and Yocham, not Barnett Range. Thus, Rinker and Yocham is the primary employer. Barnett Range, as the general contractor which hired Rinker and Yocham, is the secondary employer.
[2] Section 8(b)(4)(ii)(B) reads in pertinent part:
(b) It shall be an unfair labor practice for a labor organization or its agents ....
(4)(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is
. . . . .
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer ...: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; ....
[3] The publicity proviso reads in pertinent part: Provided, That nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution; ....
[4] In Debartolo, Debartolo, a mall management company, conceded that Wilson, a mall department store, distributed products produced by High, a construction company. The court inferred that "construction workers, like truck drivers, may perform services essential to the production and distribution of consumer goods." 463 U.S. at 155, 103 S.Ct. at 2932. Here, the court presumes that the subcontractor, Rinker and Yocham, produces a product rough carpentry work distributed by the general contractor, Barnett Range. As the Supreme Court noted in Debartolo, the coverage of the proviso is broad enough to include almost any primary dispute that might result in prohibited secondary activity. 463 U.S. at 155, 103 S.Ct. at 2932. See International Brotherhood of Teamsters Local 537 (Lohman Sales Co.), 132 N.L. R.B. 901, 907 (1961) (congress did not intend the word `product' as a word of special limitation). Thus, regarding the production and distribution requirement of the publicity proviso, this Court finds the facts of this case fall within the requirements of the proviso.
[5] Rough and finish are construction terms of art referring, respectively, to the construction of the building frame and the work covering the frame.
[6] The Board presented no evidence that the misidentification of Russell Barnett was of any consequence. Therefore, the Court does not rely upon the misidentification in making its findings.
[7] Contrary to the union's concerns, this result does not constitute an absolute ban based upon the content of the handbills. First, the restriction upon union activity depends upon the location of distribution as well as the content of the handbills. Rinker and Yocham finished their work at the Port Apartments before handbilling began. Therefore, the sole object of the handbilling was to coerce a neutral employer. Second, if the handbilling is not coercive, its contents is limited only to the extent that the information must be true and relevant to the dispute. This limitation comports with the application of the First Amendment to speech pertaining to commercial transactions. Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest and through means that directly advance that interest. Zauderer v. Office of Disciplinary Council of the Supreme Court of Ohio, ___ U.S. ___, ___, 105 S. Ct. 2265, 2274, 85 L. Ed. 2d 652 (1985). Here, the handbills are both prohibited by statute and false and deceptive. Moreover, the restriction imposed by statute serves the substantial governmental interest of maintaining industrial peace.
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435 A.2d 955 (1981)
Robert W. GREGORY
v.
VERMONT TRAVELER, INC. and Clayton E. Russell.
No. 370-80.
Supreme Court of Vermont.
September 1, 1981.
McCarty & Rifkin, P. C., Brattleboro, for plaintiff.
Fitts, Olson, Carnahan, Anderson & Bump, Brattleboro, for defendants.
Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.
HILL, Justice.
Plaintiff was hired by Vermont Traveler, co-defendant in this action, to serve as general manager for its business, selling recreational trailers, vehicles and motor homes in the Brattleboro area. All discussions regarding terms of employment were oral. Parties agreed, however, that plaintiff was to receive a regular working salary and fringe benefits, plus incentive compensation based upon the success of sales. Plaintiff contends that such incentive compensation was to be based on gross sales. Defendant claims that the incentive compensation was to be a discretionary amount decided by defendant annually based upon the net profit of the business.
Defendant's business ran on a fiscal year from 1 November to 31 October. Plaintiff commenced work in March, 1976. Gross sales for the fiscal year preceding plaintiff's arrival were $86,000.00. For the fiscal year ending in October, 1976, of which plaintiff worked six months, gross sales reached $636,000. For those eight months, plaintiff was paid $22,000.00. For the next fiscal year, gross sales reached $866,000.00, and plaintiff was paid $16,600.00, $1,000.00 of which was a bonus. Plaintiff only worked six months the next fiscal year before quitting. Gross sales had reached $1,209,000.00, and plaintiff received $8,400.00.
During the last year and one-half of plaintiff's employment, defendant had for the first time placed various family members on payroll as officers of the business. In 1975, there were no similar salaries; salaries for fiscal year 1978 exceeded $36,000.00. Net profit showed a decrease despite the increase in gross sales.
Plaintiff brought this action against Vermont Traveler, Inc., and Clayton E. Russell, owner of the business, in January, 1979, alleging he was entitled to bonus compensation for the period commencing November 1, 1976, through the date his employment terminated based on defendant's business' gross sales, or, in the alternative, to a reasonable compensation for the term of his employment. The trial judge dismissed the action against defendant Russell, and that decision is not challenged. Defendant Vermont Traveler, Inc. answered and counterclaimed. The counterclaim is not part of this appeal.
*956 The court charged, without objection, that if the jury concluded both parties clearly knew and understood the way the compensation was fixed that it was to decide whether all of the agreed compensation was paid. If no such agreement was found, then plaintiff was entitled to a reasonable compensation for services actually rendered, which would be compared to the amount he in fact received. The jury returned a verdict against defendant in the amount of $22,343.00. Defendant timely moved for a new trial under V.R.C.P. 59 on the ground that damages awarded were excessive. Upon the refusal of the court to order a remittitur and the denial of the motion for a new trial, defendant appeals. We affirm.
Granting a motion for a new trial is within the discretion of the trial court, and the evidence must be considered in the light most favorable to the verdict. McKenna v. May, 134 Vt. 145, 148, 353 A.2d 359 (1976). "Only after the evidence is so viewed, and the verdict is shown to be clearly wrong and unjust because the jury disregarded the reasonable and substantial evidence, or found against it, because of passion, prejudice, or some misconception of the matter, can the court exercise its discretion to set aside the verdict." Id. This Court, on appeal, is bound to accord to the ruling all possible presumptive support, similar to the support the trial court owes to a jury verdict.
Plaintiff started his employment in March, 1976, and from that date until October 31, 1976, was paid $20,000.00. That amount represents 3.241 per cent of the gross sales for the period. The jury may have believed that the incentive compensation was to be based on a proportion of the total gross sales for the fiscal year. Consequently, using the same 3.241 per cent figure, the amount due plaintiff for the period November 1, 1977, through March 16, 1978, could be computed as follows:
Gross sales $1,209,000.00
Factor .03241
_____________
For year 39,183.00
Per month 3,265.00
For 4.5 months 14,693.00
Received 6,000.00
_____________
Amount due 8,693.00
This amount added to the $11,500.00 which the jury may have found was owed for the preceding year, using similar computations, would equal $20,193.00 as total compensation still owed. Given the 8.5% interest on that amount over eighteen months, we cannot say that the damages are excessive.
Judgment affirmed.
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180 N.J. Super. 459 (1981)
435 A.2d 572
RESORTS INTERNATIONAL, INC., A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, ET AL., PLAINTIFFS,
v.
NJM ASSOCIATES, A NEW JERSEY LIMITED PARTNERSHIP, DOING BUSINESS AS THE NEW JERSEY MONTHLY, ET AL., DEFENDANTS.
Superior Court of New Jersey, Law Division Atlantic County.
Decided July 1, 1981.
*463 Mark D. Schorr for plaintiffs (Sterns, Herbert & Weinroth, attorneys).
Guliet D. Hirsch for defendants (Brener, Wallack, Rosner & Hill, attorneys).
GIBSON, J.S.C.
This is a discovery motion which requires a resolution of the conflict which sometimes arises between the factfinding role of the litigation process and the privilege in favor of confidentiality for news sources. The facts which bring this issue before the court are not in dispute and may be briefly summarized. Plaintiffs instituted a defamation action as a result of an article which appeared in the May 1979 issue of New Jersey Monthly Magazine entitled "Surrender in Atlantic City." The article concerned itself with the circumstances surrounding the attainment by plaintiff Resorts of a permanent license to operate a *464 casino in Atlantic City. Among other things, the article indicated that Resorts was a "mismanaged, unscrupulous, mobtainted company...." and that as a result of a combination of improper influence and supportive treatment by the Casino Control Commission, bordering on complicity, the license processing was a "sell out." Following the commencement of the suit, and as part of the discovery process, plaintiffs served on defendants certain interrogatories and a request for the production of documents. Although many of those interrogatories were answered and certain of the documents were produced, a significant number were not defendants taking the position that the material was "privileged." Without relating the nature of each and every interrogatory in dispute, the main thrust of the defense position relates to those questions dealing with material obtained through "confidential sources" and those relating to the "editorial process."
Essentially, the issue raised by this motion is whether defendant magazine, being an entity engaged in and connected with the news media, has a privilege to refuse to disclose as part of this civil proceeding, the sources of its story and the editorial process which culminated in its publication. Defendants assert a number of positions in support of the view that the answer to that question should be "no." The privilege that it claims is asserted to be based on the First Amendment of the United States Constitution and the New Jersey Shield Law, N.J.S.A. 2A:84A-21. Generally, plaintiffs take the position that the First Amendment is not involved and that, although admittedly defendants are included within the protections of the New Jersey Shield Law, that protection has been "waived" in this case because of the defenses asserted, including "good faith," lack of malice, etc.
With respect to the New Jersey Shield Law, the issue raised here was specifically dealt with in the case of Beecroft v. Point Pleasant Print. & Pub. Co., 82 N.J. Super. 269 (Law Div. 1964). That case also involved a libel action where the defendant newspaper resisted plaintiff's efforts at discovery. Relying *465 heavily on the Supreme Court case of Brogan v. Passaic Daily News, 22 N.J. 139 (1956), the court held that although the Shield Law would normally protect defendant from being compelled to supply the information requested, the pleading of such defenses as fair comment, good faith and reasonable belief as to the truth of the subject matter constituted a waiver of the statutory privilege, and accordingly the defendant was required to answer the interrogatories. One of the underlying theories of Beecroft and Brogan was that the privilege conferred on the news media is permissive and not mandatory, and thus the newspaper, or in this case the magazine, makes a choice as to when it will or will not invoke the privilege. Accordingly, when its own actions bring into question potential liability on its part to third parties, such as plaintiff here, it should not be able to pick and choose what it will reveal and what it will not reveal with respect to the information that bears on that liability. Brogan v. Passaic Daily News, supra at 152. It was noted in Brogan that to permit a defendant in a libel case to insulate itself from an inquiry into the sources of its publication could effectively deprive the plaintiff of the ability to prove malice. Absent such a showing, a recovery of punitive damages would be foreclosed. The court was unwilling to read such an intent into the Shield Law. Ibid.
Brogan, of course, was decided eight years prior to the landmark case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Under the present state of the law a "public figure" must prove malice not only to recover punitive damages, but to recover at all. To establish "actual malice" in the constitutional sense requires a showing that the defendant proceeded with publication with knowledge that the material was false or with reckless disregard of whether it was false or not. Ibid. The rationale of Brogan is therefore more compelling today than it was then. At stake today is not merely the establishment of facts sufficient to establish a basis for punitive damages, but rather the survival of the cause of action itself. Cf. Carey v. Hume, 492 F.2d 631, 634 (D.D.C. 1974).
*466 The conclusion that the New Jersey Shield Law is not absolute in its granting of protection to those seeking its application was underscored in the case of In re Farber, 78 N.J. 259 (1978). Although the Shield Law was examined there within the context of a criminal trial, the court made clear that when the privileges contained in the statute are confronted by certain competing demands (in that case the constitutional right in favor of compulsory process for obtaining witnesses) the privilege must yield. That case did not involve the issue of "waiver," but it does refute the proposition that defendant is entitled to any absolute privilege based on the Shield Law. See, also State v. Boiardo, 82 N.J. 446 (1980).
Defendant urges that Brogan and Beecroft are no longer good law and should not be followed. However, absent some clear rejection of Brogan by a later tribunal of equal or higher authority, this court is not free to reject its ruling. Nor is such a suggestion persuasive on the merits. Plaintiff here has admitted that it is a "public figure" for the purposes of this suit and must bear the burden that that classification carries with it. Under the circumstances, the requirement for showing malice is clear. Questions of malice are normally subjective and thus require some examination into the thought process of the person accused. Plaintiff is therefore placed in an impossible position if it cannot pursue through discovery and at the time of trial the nature of that thought process, including the material upon which the article was based. Insofar as defendant relies on confidential sources, there should be an opportunity to inquire into the sources and the information actually supplied. Plaintiff should not be required to rely on defendant's version of the information which is critical to the establishment of the cause of action.
In addition to the general propositions previously related, the courts in both Brogan and Beecroft supported their rulings in favor of disclosure based on the conclusion that the defendants had "waived" the privilege afforded to them under the Shield Law. As noted,
*467 The privilege given, like any other personal privileges, constitutional or statutory, can be waived by voluntary testimony of the person upon whom the privilege is conferred. [citations omitted] [Brogan v. Passaic Daily News, supra 22 N.J. at 152]
Defendant in Brogan took the stand and, after testifying that he obtained his information from a "reliable source," related the substance of the information he received. The court held that in view of the defenses asserted (good faith, truth and lack of malice) such conduct constituted a "waiver" and therefore an inquiry into the privileged information should have been permitted. In Beecroft, as here, the issue came before the court as part of the discovery process. The same defenses of good faith, lack of malice, etc., were asserted, and defendant again claimed that the information relied upon for the article was based on confidential sources. In ordering disclosure the court made reference to N.J.S.A. 2A:84A-29, a section of the Shield Law speaking directly to waiver. Part (b) of that statute indicates that waiver exists when the holder of the privilege "without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone." Beecroft did not rely on this provision, however, but rather ruled that the asserting of the defenses listed above, "while conceivably not within the scope of a waiver as defined by N.J.S.A. 2A:84A-29(b), can nevertheless be viewed as an act constituting an effective waiver...." Beecroft v. Point Pleasant, Print. & Pub. Co., supra 82 N.J. Super. at 279. In so concluding, the court reasoned that, although the Legislation set forth only two instances of statutory waiver, waiver could also occur just as effectively from other acts. Ibid.; see also, Evid.R. 37 (Anno. 1980), comment at 182. Cf. In re Bridge, 120 N.J. Super. 460 (App.Div. 1972), certif. den. 62 N.J. 80 (1972), cert. den. 410 U.S. 991, 93 S.Ct. 1500, 36 L.Ed.2d 189 (1973).
Although neither Beecroft nor Brogan so ruled, one could argue that, since defendant has identified portions of the article as being based on confidential sources and has given "testimony" to this effect by certifying answers to interrogatories to be *468 true, a statutory waiver has occurred. N.J.S.A. 2A:84A-29. Such a reading would probably mean that every defendant in a libel suit who claims to have relied on confidential sources would waive the protections of the Shield Law. No case appears to have gone that far, nor need this court do so. The rationale of Brogan and Beecroft provides ample authority for a finding of waiver here. The fact that the issue is being examined at the discovery stage as opposed to a trial setting does not alter the controlling principles. See Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).
Further support for the conclusion that defendants are required to disclose their sources in this setting may be found in the recent amendments to the New Jersey Shield Law, L. 1979, c. 479, § 1 et seq. (eff. Feb. 27, 1980). In an apparent response to the Farber decision, the amended sections deal with procedures applicable when there is a claim and exercise of a newspaper person's privilege where the claimant is responding to a subpoena issued by or on behalf of a defendant in a criminal proceeding. N.J.S.A. 2A:84A-21.1 et seq. After a prima facie showing that the person asserting the privilege is engaged in or connected with the news media, etc., the statute requires the defendant to show by clear and convincing evidence that the privilege has been waived under N.J.S.A. 2A:84A-29 (R. 37) or that by a preponderance of the evidence
... there is a reasonable probability that the subpenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issues of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source. Publication shall constitute a waiver only as to the specific materials published. [N.J.S.A. 2A:84A-21.3]
The above provisions are very similar to those required by the various federal cases recognizing a privilege under the First Amendment label. See discussion infra. The significance of the legislation at this point, however, is that it appears to relate exclusively to cases involving defendants in a criminal *469 proceeding. Indeed, defendants do not suggest otherwise. The fact that the Legislature has recently reexamined this area and has chosen not to change the procedures applicable in civil settings is significant. Under normal statutory construction the Legislature is presumed to know of the outstanding case law interpreting a particular statute. Having taken no steps to change the legislation in a way which would reject the readings given to it by Brogan and Beecroft, this court must assume that the Legislature intended to keep them intact. Beecroft v. Point Pleasant Print. & Pub. Co., supra 82 N.J. Super. at 276; State v. Burns, 159 N.J. Super. 539, 545 (App.Div. 1978); see, also, Legislative Comment to Assembly Bill 3062 L. 1979, c. 479. Nor does a broad reading of the amendments which would apply the new procedures to a civil setting seem to be a fair interpretation. This is particularly true in view of the "universal recognition" that statutory privileges, being in derogation of the common-law right to obtain information on matters directly in issue, should be strictly construed. Beecroft v. Point Pleasant Print. & Pub. Co., supra at 276; Brogan, supra.
The New Jersey Shield Law aside, defendants argue that they are protected from disclosure under the First Amendment to the United States Constitution. Cited in support of that proposition is the case of Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), and a number of federal court decisions, including some from the Third Circuit. See Riley v. City of Chester, 612 F.2d 708 (3 Cir.1979); United States v. Cuthbertson, 630 F.2d 139 (3 Cir.1980); United States v. Criden, 633 F.2d 346 (3 Cir.1980). The thrust of most of the federal rulings indicates that a reporter has a First Amendment privilege which protects the identity of confidential sources, but that privilege is not absolute and must yield when outweighed by competing demands. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5 Cir.1980). Each case therefore requires a balancing of those demands within the factual framework presented. In a civil setting the competing interests include, on the one hand, the policy in favor of allowing the press unfettered *470 access to sources of information and, on the other, the fundamental goal of the judicial system in having unimpaired access to testimony and relevant information which is essential to a search for the truth. Cervantes v. Time, Inc., 464 F.2d 986 (8 Cir.1972), cert. den. 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973). Defendants thus argue that the constitutional dimensions of the privilege require that this court deny the request for disclosure absent a finding that (1) the material sought is relevant; (2) it "goes to the heart" of the case, and (3) it cannot be obtained through less intrusive sources. See Garland v. Torre, 259 F.2d 545 (2 Cir.1958).
Plaintiffs assert that no such First Amendment freedom exists, that the issue is evidential in nature and is thus controlled by our own rules and statutes. Perhaps the simplest answer to this question is that once there has been a determination of "waiver," as there has been in this case, it makes little difference whether one relies on the Shield Law or the First Amendment for establishing the existence of the privilege. Whatever the source of the privilege, it has been waived. Cf. Anderson v. Nixon, 444 F. Supp. 1195, 1199 (D.D.C. 1978), recognizing the First Amendment privilege but ordering disclosure on the theory of waiver where the reporter was the plaintiff.
To deal with this issue on a substantive level requires a resolution of conflicting signals, not only from the federal sources themselves, but as between the state and federal decisions. For example, although the Branzburg decision is repeatedly cited as the source of the conclusion that the First Amendment provides a qualified privilege for newspersons sources, such a conclusion cannot be attributed to the majority of the court. The ruling was a 5-4 decision, or perhaps more accurately 4-1-4, Justice Powell's concurring opinion being needed to obtain a majority. The plurality specifically rejected the notion that a First Amendment privilege existed for newsmen which would justify their refusal to testify before a grand jury. Although Justice Powell's concurring opinion spoke in *471 terms of balancing "vital constitutional and societal interests on a case-by-case basis...," no such balancing was done by the plurality, and our own Supreme Court rejected such a weighing process when faced with the same claim. In re Farber, supra, 78 N.J. at 268. In so holding it similarly rejected the claim that a First Amendment privilege existed in such a setting. Ibid. Most federal court decisions read Branzburg more broadly. See, e.g., Riley v. City of Chester and United States v. Cuthbertson, both supra.
The most recent pronouncement from the New Jersey Supreme Court also lends support to a broader reading. State v. Boiardo, supra 82 N.J. at 455. The issue came before the court in Boiardo as a result of a claim of privilege by a reporter subpoenaed to testify in a criminal trial. Speaking to the conflict between the rights to a fair trial and free press, the court noted that when faced with this conflict the court must consider, "under the precise facts..., whether and in what manner a reconciliation of competing interests may be accomplished that will cause minimum interference with the rights of the parties." Ibid. Although the court relied on the recently amended Shield Law to support its conclusion, N.J.S.A. 2A:84A-21.1 et seq., it also gave recognition to the "constitutional dimension" of the problem. Id. at 456-457, n. 8. See, also, State v. Boiardo, 83 N.J. 350 (1980).
In assessing the above authorities, it is important to keep in mind the precise factual settings within which the rulings were made. Branzburg, Cuthbertson and Boiardo, for example, all involved criminal proceedings where the reporter claiming the privilege was not a party. Although the existence or nonexistence of a constitutional privilege should not depend on the nature of the judicial proceeding where it is asserted, United States v. Cuthbertson, supra at 147, the status of the reporter does have an impact on the weighing process. Where it is the reporter's own actions which are in issue, as is the case in a libel action, not only is the legitimacy of the asserted privilege *472 called into question but, as previously pointed out, the ability of the plaintiff to inquire into the nature of the source material becomes critical. See Herbert v. Lando, Miller v. Transamerican Press, Inc. and Carey v. Hume, all supra.
Having said that, however, does not mean that in every libel case discovery into confidential sources should routinely be granted. As a threshold matter, there should be an inquiry into the substance of the libel allegations. Cervantes v. Time, Inc., 464 F.2d 986, 993 (8 Cir.1972), cert. den. 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973). Satisfaction of the three-part test outlined in Garland, supra, would provide the further insulating process necessary to accommodate the competing demands that these cases present; i.e., (1) is the information relevant; (2) is there a compelling interest in the information, and (3) can it be obtained by alternative means? Miller v. Transamerican Press, Inc., supra at 726.
Assuming the existence of a constitutional dimension to the privilege and the applicability of the above three-part test, the circumstances of this case nevertheless justify disclosure. The thrust of the magazine article here charges plaintiff with being mismanaged, unscrupulous and "mob-tainted." It cannot be suggested, therefore, that the libel allegations are without substance. As to the requirement for relevance, clearly the basis upon which such charges are founded qualifies. Plaintiff has similarly shown a compelling need for the information in view of the critical bearing of such information on the question of malice. New York Times v. Sullivan, supra. As to the requirement that less intrusive sources be exhausted, it is difficult to conceive in this setting how such a search could be accomplished. The mob-connection charge goes to the heart of the libel claim. To the extent that defendants rely on confidential sources for such a conclusion, it would seem that there is no other practical way to inquire into the bona fides of such a claim. Certainly this court can take judicial notice that the "mob" is not easily identified and does not make its members readily available to examination.
*473 It is the opinion of this court, therefore, that, whether one relies on the New Jersey Shield Law or the First Amendment to the Federal Constitution, under the facts of this case defendants may not successfully resist plaintiffs' application for discovery. The protections of the Shield Law, although clearly applicable, have been waived. Assuming that the protection is constitutional in its dimension, it nevertheless must yield under the circumstances presented here.
There are two other defenses which have been asserted which still require the attention of this court. First, defendants now suggest that, since only eight of the paragraphs of its article rely on confidential sources and since those paragraphs do not contain defamatory material insofar as plaintiff is concerned, disclosure is not required. Second, it is argued that the editorial process is protected, even if confidential sources are not. Neither argument is persuasive. The particular paragraphs now claimed by defendants to be the result of material obtained through confidential sources cannot be read in isolation, but rather must be considered as part of the entire context of the article, where clearly there is more than enough to establish a prima facie case of libel. Also, although the paragraphs identified by defendants arguably do not directly libel Resorts, they are inextricably entwined in a setting that, at least by implication, ties Resorts to "mob" money and the utilization of improper influence. (The specific paragraphs in question are outlined on page 18 of defendants' initial brief.)
With respect to the "editorial process," defendants again argue that both the New Jersey Shield Law and the First Amendment insulate an inquiry into this area. The Supreme Court of the United States specifically rejected this argument within the context of a claim of privilege under the First Amendment, Herbert v. Lando, supra. Defendants argue, however, that Herbert v. Lando too narrowly construed the "editorial process" and that the Shield Law protects them in any event. This court rejects the "narrow construction" interpretation of *474 Herbert v. Lando. However, even assuming that the Supreme Court was too narrow in its views, its opinion is nevertheless controlling here. As to the Shield Law, the prior conclusions concerning waiver apply just as effectively whether one deals with the disclosure of confidential sources or the editorial process. Both bear critically on the establishment of facts needed by plaintiffs to establish defendants' malice and lack of good faith. In fact, the concept of waiver seems even more compelling when one deals with the editorial process than it does in the case of confidential sources. Such a comparison, however, is academic in view of the positions taken by this court.
In summary, it is the opinion of this court that, based on the facts here, plaintiff is entitled to inquire into the sources of the alleged libelous article, including those identified as being confidential. That inquiry may also include the "editorial process." Whatever First Amendment protections exist are outweighed by the fundamental need for unimpaired access to the information which is critical to the within cause of action and to the search for the truth. Although defendants are entitled to the protection of the New Jersey Shield Law, that protection has been waived.
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343 S.W.2d 921 (1961)
GREAT SOUTHERN LIFE INS. CO., Appellant,
v.
Georgia M. S. WATSON, Appellee.
No. 7019.
Court of Civil Appeals of Texas, Amarillo.
February 6, 1961.
Rehearing Denied March 6, 1961.
*922 Vinson, Elkins, Weems & Searls, Houston, B. Jeff Crane, Jr., Houston, of counsel. for appellant.
Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.
NORTHCUTT, Justice (dissenting).
Mrs. Georgia Watson sued Great Southern Life Ins. Co. to recover upon an insurance policy issued to William Edison Watson, her husband, in which she was beneficiary. The policy provided double indemnity in case of death by accident. The parties will be referred to herein as they were in the trial court. It is undisputed that the policy was in force at the time of the death of William Watson and that Watson died from gunshot wounds. Plaintiff alleged that William Edison Watson was accidentally killed as a result of a gunshot wound and not from suicide.
The defendant answered admitting the policy was in force on September 9, 1959 at the time of the death of Watson; that said policy provided for the payment of $25,000 to the beneficiary of said policy subject to the exceptions and provisions in said policy and further provided for the payment of an additional sum of $25,000 to the beneficiary upon receipt of due proof that the death of insured, William Edison Watson, resulted solely from bodily injury caused directly and independently of all other causes by accidental, violent and external means. It pleaded the insured, William Edison Watson, died from suicide and self-destruction on the 9th day of September, 1959 and that defendant was not liable herein because the provisions of the policy provided that if the death of insured occurred within two years from the date of issue thereof, by suicide while sane or insane, the liability of the company was limited to the amount equal to the premiums which had been paid. The defendant paid to the clerk of the court the amount of the premiums paid, and the court ordered the same accepted by the clerk pending the final disposition of the cause.
The case was tried to the court without a jury. The court entered its judgment finding that the plaintiff was entitled to recover the $25,000 base limits of the policy, the $25,000 double indemnity benefits and the statutory 12 per cent penalty on the total or $6,000 and a reasonable attorney's fees which the court found to be $10,000. The court accordingly entered judgment in favor of the plaintiff for the amount of $66,000 together with interest thereon from date at the rate of 6 per cent per annum. From that judgment the defendant perfected this appeal. This appeal is presented upon three points of error contending there was no evidence that the insured, William Edison Watson, died as a result of external, violent and accidental means; the evidence conclusively established that the insured died by suicide and self-destruction, and because the evidence was not sufficient to establish that the insured died as a result of external, violent and accidental means.
In presenting her case to the court the plaintiff offered in evidence the insurance policy; death certificate showing Watson died from gunshot wounds; exhibits three *923 through seven, both inclusively, showing pictures of Watson after being shot and then admissions that the death of Watson resulted solely from gunshot wound or wounds to his body on September 9, 1959 and that he died on that date. Plaintiff next offered the evidence of J. D. Miller who testified as to where the body was found and its position and where the gun was laying. Next plaintiff offered the evidence of J. O. Fitzjarrald, an attorney, as to what would be a reasonable attorney's fees for handling this suit. Then the plaintiff rested. The question up to this time is whether the plaintiff brought her cause within the rule requiring her to establish that the case was not one of suicide. The burden was on the plaintiff to prove that the deceased did not commit suicide in order to bring her claim within the terms of the policy. Rowley v. American Nat. Ins. Co., Tex.Civ.App., 124 S.W.2d 173; Woodmen of World Life Ins. Soc. v. Smauley, Tex.Civ.App., 153 S.W.2d 608. It is stated in the case of American Nat. Ins. Co. v. Fox, Tex.Civ.App., 184 S.W.2d 937, at 943 (Writ refused, W. M.) as follows:
"The burden was upon the plaintiff to make out a case, aided by such presumptions as are recognized by the law. There is no presumption that the insured voluntarily brought the danger upon himself. The presumption, based upon the recognized instinct of self-preservation, is to the contrary."
It is stated in the case of Great American Life Ins. Co. v. Dearing, Tex.Civ.App., 193 S.W.2d 250, 253 (Writ refused, N. R. E.):
"[2,3] Concededly by appellee, since she sued upon the accidental benefit provision of the policy in suit (Section 15 thereof), as is well settled, she had the burden of establishing that the case was not one of suicide, which, as recited supra, she succeeded in doing to the satisfaction of both the trial court and the jury. This court holds, as against the position of the appellant, that she did at least produce enough evidence against the appellant's suicide theory as brought the determination of that question within the province of the jury.
"[4] In the first place, it is also well settled, as appellant expressly concedes, that there is a very strong presumption in the law against the commission of suicide, in which, in an instance where one shoots himself, as the appellee's husband is conceded by both parties to have done, it is assumed that it was an accident rather than an intentional act; and further, even that the deceased was normal and without suicidal intent. Southland Life Ins. Co. v. Brown, Tex.Civ.App., 121 S.W.2d 653, error dismissed; Brockman v. J. Weingarten, Inc., Tex.Civ.App., 115 S.W.2d 753, affirmed 134 Tex. 451, 135 S.W.2d 698; 39 Tex.Jur. in footnote at page 853; Malley v. Union Indemnity Co., Tex.Com.App., 12 S.W.2d 1002."
When the plaintiff rested we think she had introduced sufficient evidence coupled with the presumption to sustain her claim until proof to the contrary was introduced to show suicide. The presumption against suicide is a rule of law and not a rule of evidence and such presumption cannot stand when the evidence submitted establishes facts to the contrary. McClelland et al. v. Great Southern Life Ins. Co., Tex.Civ.App., 220 S.W.2d 515 (Writ refused, N. R. E.).
We are familiar with the rule as laid down in the case of Renfro Drug Co. et al. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613, 23 A.L.R. 2d 1114, by the Supreme Court where it is stated:
"[1,2] No findings of facts or conclusions of law were requested of or filed by the trial judge. The trial court's judgment, therefore, implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto `it is proper *924 to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.' Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696."
We must determine if there is sufficient evidence of a controverted fact in this case as to whether deceased committed suicide or not. The only disputed question is whether the shots were accidental or an act of intentional self-destruction. The plaintiff's evidence consists of the fact that Watson was killed by a gunshot and the evidence of several witnesses that they had known the deceased for several years and had not noticed any change in him and that he was a jovial person and so far as they knew he had no reason or motive to commit suicide. This testimony together with the presumption based upon the recognized instinct of self-preservation is sufficient to rebut any claim of suicide unless the evidence of the defendant shows the shooting was intentional. The judgment must stand, unless the evidence establishes that the shooting was intentional to that degree of conclusiveness which precludes a reasonable doubt to the contrary. United Fidelity Life Ins. Co. v. Adair, Tex.Civ.App., 29 S.W.2d 940, at page 944; Home Benefit Ass'n v. Buro, Tex.Civ.App., 10 S.W.2d 188.
The case of Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767, by Com. of App. opinion adopted by the Supreme Court states:
"[4] The presumption is a true presumption, which has been defined as `a rule of law laid down by the courts which attaches to facts certain procedural consequences'. McCormick & Ray's Texas Law of Evidence, Sec. 32, p. 48. It places on the party against whom it operates the burden of producing evidence. It is not evidence and when met by rebutting proof is not to be weighed by the jury or treated by the jury as evidence in arriving at a verdict. McCormick & Ray's Texas Law of Evidence, pp. 51, 58, Sections 34, 37; 20 Amer.Jur. pp. 170, 171, Sec. 166. (Underlining ours.)
"That such is the established rule in this state is settled by the authorities above cited, particularly Lewis v. J. P. Word Transfer Co. [Tex.Civ.App., 119 S.W.2d 106] and Houston News Co. v. Shavers [Tex.Civ.App., 64 S.W.2d 384]. In the Lewis case Associate Justice Looney quoted with approval a full and clear statement of the rule and its effect from the opinion of Associate Justice Alexander in the Shavers case. The approval by this court of the rule there stated, the substance of which has been given above, is evidenced by its refusal of applications for writs of error in both cases."
Under the terms of the policy, the burden was on the beneficiary to allege and prove the necessary elements of accident in order to recover double indemnity and after that was done it was then up to the insurance company to prove that deceased came to his death as a result of suicide to avoid liability for the face of the policy. [Since we have held the beneficiary had sustained her burden of proof as to the element of accident when she rested], we now must consider whether the defendant sustained its burden of proof that the deceased came to his death as a result of suicide. Since the presumption is not evidence, as stated in the case above cited, and has been rebutted in this case all the evidence left to establish the claim of the plaintiff is the testimony of the witnesses that they knew of no reason or motive for Watson committing suicide.
Since the deceased was shot twice, he was bound to have been shot the first time before the first shell was extracted from the gun, and since the shell was found as testified to, and the gun having to be pumped and throwing the shell where it did it would have been impossible for the deceased to have accidentally shot himself both times under the chin because it would *925 have been impossible from the position of the body and where the shell was found. There is no evidence that the accident happened while deceased was getting through the fence. The undisputed record shows that deceased was bound to have been back closer to where the extracted shell was found when the first shot was fired, and the undisputed testimony showing that when the shell was extracted it would go up a little to the right and back of the deceased, the gun could not have been pointed in a manner to shoot the deceased under the chin as shown by this record.
We give very little credence to the testimony of those persons testifying that so far as they knew the deceased did not have any reason or motive to commit suicide. Webster defines reason as that which is supposed or affirmed to support or justify any conclusion, belief, or plan of action. Motive is a strong or impelling influence towards some particular object to be obtained or to be secured. This testimony was given without the witnesses showing they knew all the facts as shown in this record such as knowing about the deceased being badly burned whereby he lost a years work, was again burned, had recently been demoted in his job at a less income and was in arrears as to his note at the bank and yet had obligated himself to pay annually $703.25 to secure the policy in question and had paid $237.94 on the first annual payment. Some men commit suicide over or because of their financial condition, others keep fighting it, others take bankruptcy and forget their troubles. We doubt anyone, from casual observation, would be in position to even contemplate what would be a reason or motive for a person to commit suicide. However, we think there is some evidence sustaining appellee's contention and therefore overrule appellant's point that there is no evidence.
Mr. Watson was dead when his body was found. A 22-pump rifle was by his body when he was found. According to this record there were no eyewitnesses to the incident as to how he was killed. The undisputed evidence shows the deceased was shot twice. One of the bullets went in under the chin and came out through the bridge of his nose and the other bullet entered under the chin close to where the other bullet entered. There was no proof as to where this last-mentioned bullet was found in his head. There is no evidence in the record as to which bullet entered the body first, but there is evidence that the bullet that went up in the head was the one that caused the death of Mr. Watson and not the one going through the bridge of his nose. The testimony of three expert witnesses showed that after the first shot was fired the only way another shot could happen was to pull the lever down on the rifle which would extract the spent shell and then pull the lever back up and in that manner the gun would be reloaded and the gun would be cocked ready for firing and then the trigger would have to be pulled. The expert testimony after examining and testing the mechanism of the 22-pump rifle was that when the spent shell was extracted from the rifle it would throw the shell up and over and a little to the right and back of the person using the rifle. There was one shell found some six or eight feet west of the fence and the deceased's body was east of the fence and there was a spent shell still in the rifle. Since the deceased was shot twice and one shell was found as here shown and one shell was in the rifle, naturally the shell found west of the fence was the one fired first.
It is stated in the case of Langlitz v. American Nat. Ins. Co., Tex.Civ.App., 146 S.W.2d 484, 486, as follows:
"[3] We shall not undertake here to determine whether there is any necessary conflict between these two rules. We shall rather assume, without deciding, that both rules may operate. If so, it seems pretty clear to us that that can only be possible upon the theory that the evidence of facts to show (making the application to the instant case) that the death of the Insured resulted `from bodily injury effected solely *926 through external violent and accidental means', etc., is at the same time the basis upon which said presumption operates, in lieu of evidence, to show that Insured did not `commit suicide.' There is involved no shift whatever of the burden of proof as called for by the required pleadings. The presumption simply stands in lieu of evidence unless and until there is some evidence tending to show suicide. In National Aid Life Ass'n v. Driskill, Tex.Civ. App., 138 S.W.2d 238, we had occasion to consider and briefly discuss, but found it there unnecessary to decide, the very interesting question of whether a presumption of fact, such as that under discussion, constitutes any evidence after the introduction of evidence contrary to the presumption, upon the issue to which the presumption relates. Since that decisions the Supreme Court, through the Commission of Appeals, seems to have decided this very question. In Empire Gas & Fuel Co. v. Muegge, Tex.Com.App., 135 Tex. 520, 143 S.W.2d 763, 767, in the opinion of Judge Smedley, it is said: "It is settled in this state, and by the weight of authority elsewhere, that such presumption is not evidence but rather a rule of procedure or an `administrative assumption' which `vanishes' or is `put to flight' when positive evidence to the contrary is introduced. * * *
"The presumption is a true presumption, which has been defined as `a rule of law laid down by the courts which attaches to facts certain procedural consequences.' McCormick & Ray's Texas Law of Evidence, Sec. 32, p. 48. It places on the party against whom it operates the burden of producing evidence. It is not evidence and when met by rebutting proof is not to be weighed by the jury or treated by the jury as evidence in arriving at a verdict."
The nearest case in point of like nature to this case that we have found is Boring v. Kansas City Life Insurance Company, 274 S.W.2d 233, 239, by the Supreme Court of Missouri where it is stated:
"The physical facts refute any other conclusion. The evidence shows that the first shot could have been accidentally fired but that the second and third shots necessitated a manual pumping of the gun, thereby excluding any possibility of its accidental discharge."
We will not lengthen this opinion by quoting further from the testimony; suffice it to say that we have carefuly considered the same and in the light of the cases cited, we have come to the conclusion that the statement of facts present insufficient evidence of bodily injury to sustain the finding that the insured, William Edison Watson, died as a result of external, violent and accidental means. We sustain appellant's third point of error.
As stated in the case of American Casualty & Life Co. v. Morrison, Tex.Civ.App., 161 S.W.2d 796, 797 (Writ dismissed and the cases there cited) proof cannot be left open to conjecture and guesswork. See also the case of International Travelers' Ass'n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040, 1044, where it is stated:
"[8] The rule seems to be established in this state that, in order to find that injury effected by accidental means, the element of accident must be found in that which produced the injury rather than in the mere fact that the injury occurred. Bryant v. Continental Casualty Co., 107 Tex. 582, 588, 182 S.W. 673, L.R.A.1916E, 945, Ann. Cas.1918A, 517; International Travelers' Ass'n v. Ross (Tex.Com.App.) 292 S.W. 193; Travelers' Insurance Co. v. Harris (Tex.Com.App.) 212 S.W. 933, 934; International Travelers' Ass'n v. Branum, 109 Tex. 543, 212 S.W. 630, 632.
"In the case of Travelers' Insurance Company v. Harris, supra, the Commission of Appeals, speaking through *927 Judge Sadler, in an opinion adopted by the Supreme Court, after an exhaustive review of the decisions which hold for and against the contention made here, says: `In view of the decisions by our Supreme Court * * * we are of the opinion that the burden rests upon the plaintiff to show that her cause of action does not fall within the excepting clause.'"
We conclude that the judgment of the trial court should be reversed and remanded for another trial in accordance with this opinion. Judgment of the trial court is reversed and remanded.
CHAPMAN, Justice.
I respectfully dissent.
The majority opinion has correctly held that from the testimony presented by the plaintiff before she rested her case she had introduced sufficient evidence to justify the judgment rendered in her favor upon the insurance policy in question. The opinion correctly holds: "The judgment must stand, unless the evidence establishes that the shooting was intentional to that degree of conclusiveness which precludes a reasonable doubt to the contrary." United Fidelity Life Ins. Co. v. Adair, Tex.Civ.App., 29 S.W.2d 940; Tex.Com.App., 29 S.W.2d 944. "* * * there must be no room for fair and reasonable minds to reach different conclusions from the evidence." Grand Fraternity v. Melton, 102 Tex. 399, 117 S.W. 788, 789. Thus, the majority has held if there is a reasonable doubt that the shot which killed the deceased was accidentally fired the judgment of the court below must stand. I have to assume then that they set the judgment aside upon the testimony alone of M. T. Robertson, a gunsmith of Amarillo. This would have to be true because appellant used only three witnesses and the other two were deputy sheriffs who testified only to the physical facts as they found them at the scene of the tragedy, which facts did not in any sense of the word preclude the possibility of accidental death. Let us then look to the testimony of Mr. Robertson. Actually, when his testimony is summed up it was only to the effect that after the first shot was fired the gun would have to be pumped to put the next shell in the chamber and then the trigger would have to be pulled.
This writer can vision from the physical facts any number of possibilities by which the gun could have been fired accidentally. The exhibits in evidence indicate the deceased was in the process of crawling through a four strand barbed wire fence because he was found dead with his trousers leg hung to the second strand of wire from the top. The testimony shows that he carried the gun with him to shoot rattle snakes, coyotes, and other wild game. If he was at the time going through the fence after game with the gun in firing position with the barrel toward him and the butt of the stock on the ground and the trigger was accidentally pulled for the first shot while he was going through the fence it would have been very easy for him to have pumped the gun while holding on to it as a brace while in the process of falling. His thumb or one of his fingers could have then pulled the trigger or the pressure against one of the wires could have done so. This is just one of any number of possibilities that are easily demonstrated with the gun.
Doctor Hamra was the examining physician for the appellant on the insurance contract here sued upon. He testified the first shot, "In going through there like it did, it could have caused him to have like a convulsive movement, or seizure of some type. * * * People shot down will often drop down and not make any motion. Other people shot will actually move their hands and feetyou have motor areas in the brain. You can prick them and it will cause you to move an arm or a leg, or something like that."
Doctor Massad had been the deceased's treating physician for many years. He testified the deceased was a quite jolly sort of fellow, that the last time he had seen *928 him he was as normal as he had ever seen him and that so far as he knew he had no motive to commit suicide. Doctor Hamra also testified, "From what I knew, I didn't think he had a motive [to commit suicide]."
Doctor Weir testified in substance that from the first shot deceased could have gone into tetanic contractions and spasms of the muscles and could have made a lot of motions. I believe then that it is a fair statement from the medical testimony to say that the mechanism of the gun could have been operated unconsciously by such involuntary reactions of the body through convulsive movements of the arms and hands. This creates another possibility which this writer believes makes it improper for this court to say that the evidence establishes that the shooting was intentional to that degree of conclusiveness which precludes a reasonable doubt to the contrary.
When this record is considered as a whole we think it is also significant to note that deceased did not go to appellant and buy the policy of insurance on his life. To the contrary appellant's agent went to his house without solicitation in an effort to sell him some insurance and the testimony shows by the agent that in his sales talk he showed him the retirement benefits of the policy whereby at his age it would have a cash value after it had been in force for 20 years of $432 per year. Additionally many business and professional men, people who worked with him, and his wife testified they knew of no motive deceased could have had to take his own life. His wife testified their home life was pleasant and the record is completely silent concerning any involvement with any other woman. His banker's testimony shows he had no financial difficulties.
The majority opinion has correctly stated the law in quoting from Renfro Drug Co. v. Lewis, supra, where the trial was to the court and no findings of fact were requested of or filed by the trial judge. See also McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643. When these rules are applied to the record before us I find myself unable to concur with the result reached by the majority. Actually, that opinion in quoting from the Renfro case correctly quotes the law in considering a no evidence point and then when applying the law to the facts passes only upon the general sufficiency or great weight and preponderance of the evidence to support the judgment of the lower court without anywhere applying the facts to the no evidence point raised.
In a case where the evidence was much stronger toward an indication of suicide than in the instant case and with a great deal of motive shown [whereas no motive is shown in our case] this court upheld a lower court verdict for the beneficiary and the case was affirmed by the Commission of Appeals. United Fidelity Life Ins. Co. v. Adair, 29 S.W.2d 940; 29 S.W.2d 944.
It is hardly to be presumed from the evidence in this case that deceased would have left the doors of his car open, the motor running, left the radio on and crawled into a fence to commit suicide. There is ample evidence from which the court, the fact finder in this case, could have concluded the shot that went through the deceased's chin and came out the bridge of his nose [the one which left the powder burns] was accidental and that it knocked him unconscious but was not fatal. If it was the first shot and knocked him unconscious and the second shot was fired in some manner while he was unconscious it could not, a fortiori, have been suicide because there could be no intent to destroy himself without consciousness. Conversely, if he was attempting to destroy himself and the first shot did not accomplish his intent it seems reasonable to say if he was still conscious he would have fired the second shot with the barrel even closer to his body to make certain he did not miss a fatal area, yet there were no powder burns from that shot.
When all these possibilities are taken together with the rule of law, not of evidence, of the strong presumption against the commission of suicide I am compelled *929 to say that the judgment of the trial court should be affirmed.
DENTON, Chief Justice.
Disagreeing with the result reached and the application of the applicable rules of law by the opinion originally presumed to be this Court's majority opinion, I consider it necessary to express my views in this case. The other two opinions sufficiently state the material facts of the case. I will therefore refrain from repeating them here.
Because of the nature of this case, the trial court's judgment must stand or fall on the application of well-established rules of law which have to do with applying various rules of evidence and procedure. Appellant's appeal is based on the contentions that there is "no evidence" and "insufficient evidence" to support the judgment of the trial court.
Both opinions clearly state the presumptions of law applicable in this type of case. Where death resulted from violent and external means and not from disease, the presumption is in favor of accidental death and against that of suicide. United Fidelity Life Ins. Co. v. Adair, Tex.Com.App., 29 S.W.2d 944, 24-B Tex.Jur. 928. However, in spite of this presumption of law the burden of proof is upon insured's beneficiary to prove that insured's death was accidental and not within the exceptions of the insurance policy. International Travelers' Ass'n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040. It is also a well-settled rule that where suicide is alleged by insurer as a defense, the burden of proof is upon the insurer to sustain this issue by overcoming the presumption of suicide. First States Life Co. v. Ransom, Tex.Civ.App., 110 S.W.2d 143 (no writ history); Southland Life Ins. Co. v. Brown, Tex.Civ.App., 121 S.W.2d 653 (error dismissed); Texas Life Ins. Co. v. Jordan, Tex.Civ.App., 253 S.W.2d 906 (error refused).
In applying these presumptions and rules of law to appellant's first point of error of "no evidence," the evidence must be reviewed in the light most favorable to the finding of the trial court. It is our duty to consider only the evidence favorable to the court's finding and disregard all evidence which is adverse or contrary to the favorable evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R. 2d 1114; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508. In view of the favorable evidence presented and the admission by appellant that the deceased died solely as a result of gunshot wounds, we must conclude the facts and circumstances established by this favorable evidence and the inferences which can be reasonably drawn therefrom support the trial court's findings. In reviewing such evidence before us along with the legal presumptions, it seems clear that we can not say as a matter of law that Watson committed suicide.
We next consider the fact question of whether the trial court's findings and judgment is against the great weight and preponderance of the evidence. In determining this question, this court must review all the evidence presented. Appellant's sole defense in this case is based on the proposition that Watson's death could not have been accidental but must have necessarily been suicide. This assertion is based on a gunsmith's testimony, corroborated by two deputy sheriffs, to the effect that the rifle could not have been fired twice in succession accidentally. The three witnesses testified the gun must be pumped and the trigger pulled in order to fire the rifle. When this evidence is reviewed along with other evidence presented, we can not say this evidence overcomes the presumption against suicide, and that such evidence makes the trial court's findings and judgment so contrary to the overwhelming weight of all the evidence as to be clearly wrong or manifestly unjust. The Commission of Appeals in United Fidelity Life Ins. Co. v. Adair, supra [29 S.W.2d 947], quoted with approval the following language:
"* * * * judgment must stand, unless the evidence establishes intentional *930 self-destruction, or suicide to that degree of conclusiveness which precludes a reasonable doubt to the contrary, and there must be no room for fair and reasonable minds to reach different conclusions from the same evidence."
In our view, appellant has not sustained this burden. We are of the further opinion that past actions, words and moods of the deceased are relevant as to any motive or intent to commit suicide. The court, in United Fidelity Life Ins. Co. v. Adair, supra, considered these factors and we think they should be considered here.
It now appears that two members of this Court are of the opinion that the judgment of the trial court should be affirmed. Therefore, the original opinion which was presumed to be the majority opinion at the time it was written must now become a dissenting opinion. Therefore, the judgment of the trial court is affirmed.
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343 S.W.2d 467 (1961)
Nickey Lynn OSBORNE et al., Appellants,
v.
STATE of Texas.
No. 7021.
Court of Civil Appeals of Texas, Amarillo.
February 13, 1961.
Lawing & Hazlett, Borger, for appellants.
John L. David, Dalhart, for appellees.
NORTHCUTT, Justice.
Petition was filed in the Juvenile Court of Hutchinson County, Texas, contending Nickey Lynn Osborne was a delinquent child in that he committed a crime of the grade of felony under the penal code of the State of Texas. Vernon's Ann.P.C. art. 47. The petition alleged the felony to be that on or about the 21st day of September A.D. 1959, Nickey Lynn Osborne did seduce by promise to marry and have carnal knowledge of (naming the young lady) a female under the age of 25 years. The case was tried to a jury upon one special issue as follows: "Do you find from a preponderance of the evidence that the minor child, Nickey Lynn Osborne, is a delinquent child, as that term is herein defined to you?" The jury answered, "We do find him delinquent." The court's charge stated what constituted a delinquent child stating as part thereof it is one "Who violates any penal law of the state of the grade of felony." The court did not give any definition of the offense with which Nickey was charged.
The issue that determines whether the child was delinquent or not is did he commit the offense with which he was charged. That was the issue to be determined by the jury. It was necessary to charge in writing and prove the specific violation of the penal laws committed by Nickey Lynn Osborne relied upon by the state to show he was a delinquent child. *468 Dearing v. State, 151 Tex. Crim. 6, 204 S.W.2d 983; Robinson v. State, Tex.Civ.App., 204 S.W.2d 981; Reeves v. State, 144 Tex. Cr.R. 270, 162 S.W.2d 705.
Nickey was charged with being a delinquent child because he seduced by promise to marry and for carnal knowledge of the young lady named in petition. There is no evidence in this record that Nickey promised to marry the young lady if she would permit him to have intercourse with her. Especially is this true since the young lady herself testified no promise of marriage was made. There is an abundance of evidence that both Nickey and the young lady wanted to get married but were prevented from doing so by their parents. The young lady in answer to questions propounded to her testified as follows:
"Q. What grade are the two of you in in school? A. Juniors.
"Q. Now, your testimony concerning your first relationship, would you say that that was on or about the 21st day of September of '59, as alleged in the complaint? A. Yes, sir.
"Q. Now, your testimony about that, what brought about the particular act; did you and Nickey discuss it? A. No, sir.
"Q. You didn't have any words; it just kinda all `come naturally?' There wasn't any words about it at all? A. No, sir.
"Q. Do you recall saying something after you had completed the relationship along the line of, `Well, what are you going to do if I should become pregnant;' do you recall that? A. Yes, sir.
"Q. That was after the act was completed. Was it then that Nickey said that he would probably marry you? A. Yes, but before it happened we had already talked about getting married again.
"Q. Well, did Nickey say, `If you will let me, I promise I will marry you right away?' A. No, sir, he didn't.
"Q. It is just something that came out of your going steady and your feelings toward each other. You just assumed that the two of you would be married, and he assumed the same thing? A. Yes, sir."
There is no question but what a great mistake has been made but it is not for us to condemn or condone the past acts committed but must pass on the case as presented in this record since we think the state failed to sustain the burden of proof requested as pleaded. We think the trial court should have sustained appellants' request for an instructed verdict and we sustain appellants' point of error one. Judgment of the trial court is reversed and rendered.
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343 S.W.2d 578 (1961)
Joseph SCHAIBLE et al., Appellants,
v.
George UHL, Appellee.
Court of Appeals of Kentucky.
February 24, 1961.
*579 William J. Wise, Newport, E. J. Marois, Cincinnati, Ohio, for appellants.
Marion W. Moore, Covington, for appellee.
CULLEN, Commissioner.
Around 10 p. m. on an April night, on U. S. Highway No. 25 in the town of Elsmere, an automobile driven by George Uhl collided with the rear end of a car driven by Bobbie Sharp. Mr. and Mrs. Joseph Schaible, passengers in the Uhl car, sustained injuries and thereafter sued Uhl for damages. The jury found for the defendant and judgment was entered dismissing the complaints. The Schaibles have appealed.
It is contended that the verdict for the defendant is palpably against the weight of the evidence, which contention amounts to a claim that the plaintiffs were entitled to a directed verdict. However, they did not move for a directed verdict and therefore they are not entitled on appeal to assert that the verdict for the defendant is contrary to the evidence. Claspell v. Brown, Ky., 332 S.W.2d 851.
Several contentions are made with reference to the admission in evidence of a written and signed pre-trial statement of Mr. Schaible which tended to exonerate Uhl of blame and was contradictory of his testimony on the trial. These contentions are based primarily on the theory that CR 43.07 and 43.08, relating to impeachment of witnesses, are applicable. The simple answer is that the statement was not an impeaching document, but evidence of an admission against interest by a party. As such it was admissible as substantive evidence. Wallis v. Illinois Cent. R. Co., 294 Ky. 177, 171 S.W.2d 225. Likewise, it *580 was not subject to the requirements of CR 43.08 as to preliminary inquiry concerning time, place and persons present, American Dist. Telegraph Co. v. Oldham, 148 Ky. 320, 146 S.W. 764, and it could be proved without laying a foundation by producing the person to whom the statement was given. Cadle v. McHargue, 249 Ky. 385, 60 S.W.2d 973. Since Mr. Schaible admitted giving and signing the statement there was no necessity to put on the stand the person who took the statement in order to prove that it was made.
It is true that Mr. Schaible was entitled to an opportunity to explain the discrepancy between his testimony on the trial and his pre-trial statement. Commonwealth Life Ins. Co. v. Pendleton, 231 Ky. 591, 21 S.W.2d 985, 66 A.L.R. 1526. He was given a reasonable opportunity to make an explanation and could offer none other than that his memory upon the trial was better than it was when he gave the statement. The court did not err in refusing to permit Mr. Schaible's attorney to continue with prodding questions in an effort to evoke some better explanation.
Another contention of the appellants is that the court erred in not requiring a medical witness for the defendant to answer, on cross-examination, a question as to whether he agreed with an isolated statement from a medical journal to which the witness had referred in his direct examination. Even if this were error it would not be prejudicial since the jury found no negligence on the part of the defendant. Actually it was not error, because the statement in question was neither relevant nor material.
The appellants assert various errors in the instructions, but they neither offered any instructions nor made any objections upon the trial to the instructions that were given, so under CR 51 they are not entitled to claim error on appeal.
The judgment is affirmed.
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343 S.W.2d 40 (1961)
MAYOR, COUNCILMEN, AND CITIZENS OF the CITY OF LIBERTY, A Municipal Corporation, Plaintiff-Respondent,
v.
DEALERS TRANSPORT COMPANY, A Corporation, and the City of Kansas City, Missouri, A Municipal Corporation, Defendants-Appellants.
No. 47966.
Supreme Court of Missouri, En Banc.
February 19, 1961.
*41 Benj. M. Powers, Richard H. Koenigsdorf, City Counselors, John J. Cosgrove, Associate City Counselor, Robert A. Meyers, Asst. City Counselor, Kansas City, for defendants-appellants.
William E. Turnage, City Atty., Liberty, for plaintiff-respondent.
WESTHUES, Judge.
This case is here on transfer from the Kansas City Court of Appeals. The opinion of that court is reported in 328 S.W.2d 727.
In this opinion, plaintiffs Mayor, Councilmen, and Citizens of the City of Liberty will be referred to as City of Liberty.
On September 15, 1958, the City of Liberty, located in Clay County, Missouri, filed a petition in the Circuit Court of that county for a declaratory judgment. The petition was filed under the Sawyer Act, Sec. 71.015, V.A.M.S., RSMo 1959, V.A.M. S., which authorizes the filing of such a petition under the Declaratory Judgment Act, Chapter 527, V.A.M.S., RSMo 1959.[1]
The relief sought was to have the court declare that a proposed annexation of land to the City of Liberty was reasonable and necessary. Named as defendants were Dealers Transport Company and the City of Kansas City, Missouri. The Transport Company owned the property proposed to be annexed. Defendant Kansas City was made a defendant because that City had theretofore, on April 6, 1956, introduced an ordinance to amend its charter by annexing certain territory in Clay County, Missouri, effective January 1, 1961, which included the territory proposed to be taken by plaintiff City of Liberty. The Dealers Transport Company did not file an answer. Kansas City did file an answer, the substance of which we shall state later in this opinion.
The City of Liberty filed a motion for judgment on the pleadings as to Kansas City. This motion was sustained. Evidence was introduced bearing only on the issue of whether the extension of the territory was reasonable. Defendant Kansas City took no part in this hearing. The trial court decreed that the proposed annexation was reasonable and the court entered a judgment on the pleadings against Kansas City. Kansas City appealed to the Kansas City Court of Appeals. That court affirmed the action of the trial court. However, as may be noticed, the Court of Appeals did not rule the question of whether the judgment on the pleadings had the effect of preventing Kansas City from completing its proposed annexation. In fact, the Court of Appeals ruled that both cities should be permitted (if they so desired) to complete the annexation; that then, and only then, should the question of whether Kansas City had priority be decided. See 328 S.W.2d loc. cit. 732, where the court said, "Nor do we decide what the respective rights of Liberty and Kansas City over the area in question might be in the speculative event that both complete their annexation proceedings." On *42 motion, the case was transferred to this court.
The case was argued and submitted to Division I of this court on May 4, 1960. In an opinion adopted on July 11, 1960, the cause was remanded to the trial court for the purpose of hearing evidence to determine whether the City of Kansas City had abandoned its annexation proceedings or had unduly delayed the completion of its proceedings and thereby lost its right of priority. On motion of the City of Liberty, the case was transferred to the Court en Banc where it was submitted on supplemental briefs and oral argument on January 25, 1961.
For a detailed statement of the case, we recommend a reading of the opinion of the Court of Appeals, 328 S.W.2d 727.
It will be noted that the Court of Appeals stated, in its opinion, 328 S.W.2d loc. cit. 730(1, 2), with reference to the claim of priority made by Kansas City, that "Counsel for both Kansas City and Liberty agree that there exists in this state, and elsewhere, what is popularly referred to as 'the prior jurisdiction doctrine.' This doctrine has resulted from the sound recognition that there cannot be two municipal corporations with co-extensive powers of government extending over the same area. The resulting and settled rule is that where two public bodies such as a municipal corporation or school district each claim jurisdiction over the same territory by virtue of completed consolidation proceedings or by completed annexation proceedings, the one which takes the first valid step to establish the consolidation or annexation has the superior claim regardless of which one completes its proceedings first. State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762; State ex inf. Goodman ex rel. Crewdson v. Smith, 331 Mo. 211, 53 S.W.2d 271; Walker Reorganized School District R-4 v. Flint, Mo.App., 303 S.W.2d 200. We have italicized the word 'completed' because in all of the Missouri cases applying the prior jurisdiction doctrine that have come to our attention through counsel and our own research the contending public bodies had completed all of their steps to annex and were seeking a determination as to which one had the superior claim thereto." For other cases on the question of priority, see State ex rel. Dalton ex rel. Stonum v. Reorganized District No. 11, Mo., 307 S.W.2d 501, loc. cit. 504(1); State ex rel. Harrier v. Village of Spring Lake Park, 245 Minn. 302, 71 N.W.2d 812; Pfeiffer v. City of Louisville, Ky., 240 S.W.2d 560; Loeffler v. City of Louisville, 308 Ky. 629, 215 S.W.2d 535; City of El Paso v. Tuck, Tex.Civ. App., 282 S.W.2d 764; Couch v. City of Fort Worth, Tex.Civ.App., 287 S.W.2d 255; and 62 C.J.S. Municipal Corporations § 52, p. 150.
The Court of Appeals ruled correctly in holding that where two or more municipalities institute annexation proceedings, the one first in order of time has priority. We are of the opinion that the Court of Appeals was in error in ruling that in this case both cities should be permitted to proceed and that the question of priority should not be determined until, and if, both cities completed annexation.
The City of Liberty filed this suit under the declaratory judgment statutes. In the prayer of the petition, it was stated:
"Wherefore, plaintiff prays the court to make its order authorizing plaintiff to annex the within described territory, and declaring that the City of Kansas City, Missouri, has no right to annex such territory."
The very purpose of the Declaratory Judgment Act is to have questions of this nature decided. Such an adjudication prevents useless expense and complications. Note the conflicting interests involved in the case of Pfeiffer v. City of Louisville, Ky., 240 S.W.2d 560, where the territory was annexed and about the same time the territory was incorporated into a village. The Court of Appeals cited the case of State ex rel. Industrial Properties, Inc. v. Weinstein, Mo.App., 306 S.W.2d 634, as authority for holding that both cities *43 should be permitted to annex before a court should determine the question of priority. That case does not rule the point before us. In that case, three municipalities had instituted proceedings to annex the same territory. The Court of Appeals was asked to issue a writ of prohibition against a circuit judge to prevent him from entertaining an action by one of the cities brought under the Declaratory Judgment Act. The Court of Appeals refused to issue the writ. It ruled that prohibition was a discretionary writ and usually issued only in cases where there is a lack of jurisdiction. It is apparent that the case is not in point.
Under the Declaratory Judgment Act, the relief should be complete. As said in 26 C.J.S. Declaratory Judgments § 161, p. 374, "As a general rule, in awarding declaratory relief, the court should make a full and complete declaration, disposing of all questions of right, status, or other legal relations encountered in adjudicating the controversy, * * *."
The answer filed by Kansas City is set out in full in the opinion of the Court of Appeals, 328 S.W.2d loc. cit. 728, 729. We shall here state only the substance of the answer which was filed November 3, 1958. Kansas City, in this answer, claimed that it had embarked upon a master plan for proposed annexation of territory; that in pursuance thereof studies had been and are being made as to the adaptability of territory for annexation. It is claimed that under this plan, three areas had been annexed, one effective January 1, 1957, one in January, 1958, and another to take effect in January, 1959; that one other such project was to be completed by January 1, 1960, and still another by January 1, 1961. It was stated that under this plan an ordinance was introduced on April 6, 1956, to amend the charter "'by annexing certain territory in Clay County, Missouri, effective January 1, 1961; that included in said territory was the area described in plaintiff's petition.'"
In the briefs and in oral argument before the Court en Banc, it was admitted that Kansas City, after the opinion in Division I was adopted, had completed the annexation of the territory in question. The City of Liberty has requested that the case be finally determined upon the pleadings and the admitted facts. We are of the opinion that the facts stated in the answer do not as a matter of law show that Kansas City had abandoned the proposed annexation or that there was unreasonable delay or lack of good faith. In fact, the annexation was completed within the time as originally proposed. That fact refutes the contention that there was an abandonment. State ex rel. Dalton ex rel. Stonum v. Reorganized District No. 11, Mo., 307 S.W.2d 501.
In the briefs, the City of Liberty cited cases from Wisconsin and asks this court to follow the rules announced by that court. The cases cited are City of Milwaukee v. Town of Oak Creek, 8 Wis. 2d 102, 98 N.W.2d 469, and In re Incorporation of Village of Brown Deer, 267 Wis. 481, 66 N.W.2d 333. The Wisconsin court ruled that an annexation proceeding, once instituted, must be completed within a reasonable time or the right of priority in order of time may be lost. We have no quarrel with that rule. We quote with approval what was said in the Village of Brown Deer case, 66 N.W.2d loc. cit. 335 (also quoted by the Court of Appeals, 328 S.W.2d loc. cit. 731, 732): "Annexation proceedings must be conducted with reasonable dispatch and completed within a reasonable time. In the absence of legislation fixing a maximum time for the completion of annexation proceedings we cannot fix an arbitrary time therefor, or we would be legislating. We can and do say, however, that annexation proceedings once commenced must be conducted and completed within a time that is reasonable in view of all of the circumstances."
In the brief filed by Kansas City in the Court of Appeals, it admitted that an annexation proceeding should be completed *44 within a reasonable time. It was there stated that "While we have found no decision ruling the point, it is doubtless the law that a city, having initiated annexation proceedings, may not sit idly by for a long period of time, without any act in furtherance of annexation and by a `dog in the manger policy' deny other cities the right to annex territory." However, under the pleadings and admitted facts that question is not before us for decision.
We rule that under the pleadings and admissions made the City of Liberty may not annex the territory described in its petition. The judgment of the trial court is therefore reversed and the case is hereby remanded to that court with directions to enter a judgment in conformity with this opinion.
It is so ordered.
All concur.
NOTES
[1] Now V.A.M.R. Civil Rule 87.01 et seq.
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291 Md. 590 (1981)
435 A.2d 1114
HARRY S. SHIPP, JR.
v.
SAMUEL S. BEVARD
[No. 66, September Term, 1980.]
Court of Appeals of Maryland.
Decided October 26, 1981.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Kaye T. Brooks, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.
Kenneth E. Pruden for appellee.
ELDRIDGE, J., delivered the opinion of the Court.
The plaintiff in this real property tax assessment case is seeking reversal of an administrative decision under Maryland Code (1957, 1980 Repl. Vol.), Art. 81, § 67 (a). Three previous cases in this Court have rejected attempts to overturn § 67 (a) determinations. State Dep't Of A. & Tax. v. Clark, 281 Md. 385, 380 A.2d 28 (1977); Mont. Co. Council v. Supervisor, 275 Md. 339, 340 A.2d 302 (1975); La Belle v. State Tax Comm., 217 Md. 443, 142 A.2d 560, cert. denied, 358 U.S. 889, 79 S. Ct. 135, 3 L. Ed. 2d 117 (1958). The plaintiff's effort in the present case will similarly be unsuccessful.
Before turning to the facts of the case, we shall briefly review the relevant statutory background. Under Art. 81, §§ 2 (20), 29A (a) and 29A (c), the taxable year begins on *592 July 1st in each year, and the assessment for the taxable year becomes final on the "date of finality" which is the previous January 1st. Notice of the assessment is ordinarily to be provided more than thirty days before the date of finality, and the taxpayer is given a specified period of time after receiving the notice to protest the assessment, Art. 81, § 29. If the taxpayer makes a timely protest, he is entitled to a hearing before the supervisor of assessments for the county, and he may appeal the supervisor's decision to the property tax assessment appeal board for the county, with the right to a hearing before the appeal board, Art. 81, § 255. The taxpayer then has thirty days after the board's decision to appeal to the Maryland Tax Court, Art. 81, § 255 (d) and 256. The Tax Court proceedings "shall be de novo and shall be conducted in a manner similar to proceedings in courts of equity...," Art. 81, § 229 (c). The taxpayer is entitled to judicial review of the Tax Court's decision in the circuit court, with a right to appeal the circuit court's decision to the Court of Special Appeals, Art. 81, § 229 (l) and (p).[1]
Consequently, the Legislature has afforded a taxpayer, as a matter of right, a comprehensive administrative remedy, with judicial review, to challenge his real estate assessment. Like most administrative remedies, there is a requirement that the taxpayer comply with reasonable time limits, beginning with a timely protest of the assessment.
In addition to the above-described administrative and judicial remedy, the Legislature has authorized certain officials to decrease an assessment in order to correct an erroneous or improper assessment and to prevent injustice, regardless of whether the taxpayer had made a timely protest of his assessment. In what is now codified as part of Art. 81, § 67 (a), the Legislature provided:
"The supervisor of assessments and the county treasurer (in Montgomery County the director of *593 finance) of each county and in Baltimore City, the city solicitor and the supervisor of assessments, and in any incorporated town in Caroline County, the town boards, may by an order, decrease or abate an assessment after the date of finality for any year, whether a protest against said assessment was filed before the date of finality or not, in order to correct erroneous and improper assessments and to prevent injustice, provided, that the reasons for such decrease or abatement shall be clearly set forth in such order."
The issue in the present case concerns the extent to which a court may review administrative decisions under the above-quoted statutory provision.
The facts of this case are as follows: The plaintiff taxpayer owns a parcel of land in Prince George's County, containing approximately 25 1/2 acres, upon which is operated a wash plant and a sand and gravel business. The assessment on this property was increased for the taxable year 1971; the taxpayer filed a timely protest of this assessment; he exhausted his administrative remedy; and he sought judicial review in the Circuit Court for Prince George's County. The circuit court decision concerning the 1971 assessment, which ordered a reduction in the assessment, was rendered on August 5, 1976. As there had been no change in the assessment for the taxable years 1972, 1973 and 1974, and no notice of assessment for those years, Art. 81, § 214A, required that the reduction ordered by the circuit court be carried over to 1972, 1973 and 1974.[2]
*594 While the proceedings regarding the 1971 assessment were pending, the property was reassessed for 1975 and 1976, with the assessment again being increased. The taxpayer received notices of the assessments for 1975 and 1976 but failed to file protests. In fact, the taxpayer did nothing regarding the 1975 and 1976 assessments until August 4, 1977, when he filed an application under Art. 81, § 67 (a), contending that the 1975 and 1976 assessments were erroneous in light of the circuit court's decision with respect to the 1971 assessment. The § 67 (a) application was denied on September 2, 1977.
The taxpayer on December 19, 1977, instituted the present action by filing a "petition for affirmative injunction" in the Circuit Court for Prince George's County against the Supervisor of Assessments of Prince George's County and the County Treasurer of Prince George's County, who were the two officials authorized to grant relief under Art. 81, § 67 (a). The taxpayer requested a mandatory injunction requiring a reduction in the assessments for 1975 and 1976. It was alleged that the assessments for these two years were "illegal" because they were "based upon use of the property instead of cash value as provided by statute." It was further alleged that there had been "no material change in the value of the subject property between the years 1971 and 1976" and that, therefore, the assessments were "illegal" in light of the August 5, 1976, circuit court decision ordering a reduction in the 1971 assessment. The taxpayer asserted that the position of the Supervisor of Assessments was "arbitrary, illegal, capricious, discriminatory and unreasonable" because of the adjudication that the 1971 assessment was illegal. There were no additional assertions or factual allegations explaining or supporting the contentions that the 1975 and 1976 assessments were arbitrary, illegal, capricious, discriminatory and unreasonable.
The defendants filed a motion raising preliminary objection on the ground that the circuit court had no authority to review the § 67 (a) administrative decision. The circuit court rendered an opinion and order granting the motion and dismissing the action, citing La Belle v. State Tax Comm., *595 supra, and State Dep't. of A. & Tax. v. Clark, supra. Thereafter, the taxpayer filed a motion for reconsideration, asserting that the assessments for 1975 and 1976 were "void and constitutionally infirm" and that, therefore, the case was distinguishable from those decisions on which the court relied. The circuit court granted the motion for reconsideration and reinstated the action, stating that judicial review would be "narrowly restricted to whether the determination of the assessing authorities met constitutional standards." Subsequently, the circuit court denied the defendants' demurrer to the petition for injunction. The defendants then answered and filed a motion for summary judgment, attaching an affidavit of the Supervisor of Assessments for Prince George's County in which the Supervisor set forth the basis upon which he exercised his discretion in determining whether to grant relief under § 67 (a) and in which he gave the reason for denying relief to the plaintiff.[3] In opposing the motion for summary judgment, the taxpayer asserted that nothing in the Supervisor's affidavit contradicted the taxpayer's allegation that the original assessments for 1975 and 1976 were "illegal."
The circuit court granted the defendants' motion for summary judgment, holding that the pleadings and affidavits disclosed no material issues of fact in dispute and demonstrated that the defendants were entitled to judgment. The taxpayer appealed to the Court of Special Appeals, and that court reversed in an unreported opinion. The intermediate appellate court concluded that summary judgment was improper because the taxpayer had made "a rather general allegation of discrimination" and the "affidavit of the Supervisor was merely conclusory and did not show *596 facts in detail and with precision which would entitle the Supervisor to summary judgment."
This Court then granted the defendants' petition for writ of certiorari, in which it was contended that the Court of Special Appeals' decision represented an erroneous application for our opinions dealing with Art. 81, § 67 (a).
Art. 81, § 67 (a), was first considered by this Court in La Belle v. State Tax Comm., supra, 217 Md. 443. The taxpayer in that case failed to make a timely protest of the assessment on her dwelling in Montgomery County. About seven months after the date of finality, she applied for a reduction under § 67 (a), which was then codified as Art. 81, § 66. Relief under the statute was denied because the Director of Finance of Montgomery County and the Supervisor of Assessments could not agree. The taxpayer then appealed to the State Tax Commission, the predecessor of the Maryland Tax Court, and the Commission held that it had no authority to review determinations under what is now § 67 (a). The circuit court affirmed the Commission's decision, and this Court upheld the affirmance. Judge Hammond for the Court pointed out that the consideration by the taxing and fiscal authorities under § 67 (a) was "a matter of grace," and that if those authorities did not grant relief, "the statute gives [the taxpayer] no further remedy and the assessment that has been allowed to become final remains on the books for the year in question." 217 Md. at 451-452.
The issue concerning review of § 67 (a) determinations next came before this Court in Mont. Co. Council v. Supervisor, supra, 275 Md. 339. In that case, several owners of nineteen separate parcels of land in Montgomery County failed to file timely protests of the assessments, and the assessments became final. After the date of finality, a moratorium was imposed prohibiting further sewer connections. Alleging that the moratorium decreased the value of their land, the taxpayers sought and obtained relief under § 67 (a), with each of the assessments being reduced by twenty-five percent because of the sewer moratorium. Montgomery County then sought review in the Maryland *597 Tax Court, claiming that the assessments should not have been reduced, but the Tax Court dismissed the appeals for lack of jurisdiction. On appeal to this Court, Montgomery County attempted to distinguish the La Belle case on two grounds. First, it was contended that the result should be different where the county, instead of the taxpayer, was seeking review of the § 67 (a) determination, 275 Md. at 344. Second, it was argued that the Tax Court had a broader jurisdiction over appeals in property tax assessment cases than its predecessor agency, the State Tax Commission, id. at 347. We rejected both arguments, re-affirmed the continuing applicability of the La Belle case, and held that the Tax Court had no authority to review § 67 (a) decisions, id. at 344-348.
The most recent case to consider the reviewability of § 67 (a) decisions, and the case upon which the present plaintiff relies, is State Dep't of A. & Tax. v. Clark, supra, 281 Md. 385. In Clark, the taxpayers failed to protest the re-assessment of their land for the taxable year 1972, and the assessment became final on January 1, 1972. In May 1972, a moratorium on further sewer extensions and sewer connections in the area was imposed, and the taxpayers thereafter applied under the § 67 (a) for a reduction in the assessment in light of the moratorium. The taxpayers' assessment for 1972 was reduced by twenty-five percent, in accordance with the policy of the officials exercising authority under § 67 (a) to abate the assessments on all properties affected by the sewer moratorium by twenty-five percent. The taxpayers, believing that they were entitled to a greater reduction, filed an action in the circuit court against the taxing and fiscal officials authorized to act under § 67 (a). They sought an injunction against the collection of taxes levied on their property and a declaration that § 67 (a), as applied to them, violated their right to equal protection of the laws as well as other constitutional guarantees. Upon cross-motions for summary judgment, the circuit court held that it had "inherent" power to correct arbitrary, illegal, capricious or unreasonable administrative acts, that, therefore, the court had authority to review the § 67 (a) *598 administrative decision, and that the administrative decision in the case before it was arbitrary. The Court of Special Appeals in Clark agreed that the circuit court had "inherent" jurisdiction to review the § 67 (a) administrative decision, but it concluded that the circuit court had erred in holding that the decision was arbitrary. The Court of Special Appeals remanded the case to the circuit court for consideration of the taxpayers' constitutional claims. This Court, disagreeing with both the Court of Special Appeals and the circuit court, held that the motion by the defendant officials for summary judgment should have been granted.
In the Clark opinion, written by Judge Orth for the Court, we reviewed the La Belle and Mont. Co. Council cases, reiterated that the potential relief under § 67 (a) was a "matter of grace" and that the joint action of officials under § 67 (a) "is entirely discretionary," pointed out that neither the tax article of the Code (Art. 81) nor the Administrative Procedure Act[4] authorized judicial review of § 67 (a) proceedings, and concluded "that there is no statutory authority giving a circuit court jurisdiction, by way of declaratory judgment or otherwise, over the propriety of a grant or denial of a reduction in a real property assessment under § 67." State Dep't of A. & Tax. v. Clark, supra, 281 Md. at 394-396.
The taxpayers' intitial argument in Clark, accepted by both the circuit court and the Court of Special Appeals, was that courts have an "inherent" right to review administrative decisions for arbitrariness, capriciousness or illegality. Reliance was placed upon cases such as Balto. Import Car v. Md. Port Auth., 258 Md. 335, 342, 265 A.2d 866 (1970); Insurance Comm'r v. Nat'l Bureau, 248 Md. 292, 300, 236 A.2d 282 (1967); Heaps v. Cobb, 185 Md. 372, 42 A.2d 73 (1945); Hecht v. Crook, 184 Md. 271, 40 A.2d 673 (1945). We pointed out that the applicability of this principle was limited to the situation where there was no statutory right of judicial review, and that where an administrative and *599 judicial review remedy is provided by statute, that remedy is ordinarily deemed to be exclusive. 281 Md. at 400-401. Because a statutory administrative and judicial review remedy was provided to contest each year's assessment, as long as a timely protest was filed, we held that there was no "inherent" authority in a court to review for arbitrariness the "purely discretionary" administrative decision under § 67 (a). Id. at 402-403.
We then pointed out in Clark that when there is an attack upon the constitutionality or validity of an enactment on its face, such case falls within a well-established exception to the principle that statutory administrative and judicial review remedies are normally deemed exclusive and must be pursued and exhausted. However, we further pointed out that when the attack is upon the constitutionality of an enactment as applied to a particular situation, as contrasted with an attack upon the validity of an enactment as a whole, the case does not come within the exception and the statutory administrative and judicial review remedies are ordinarily exclusive. We noted that the taxpayers' attack went only to the constitutionality of § 67 (a) as applied and not to its constitutionality on its face. 281 Md. at 403-404.
Nevertheless, the Court in Clark went on to recognize that the case presented an unusual situation. As the taxpayers in Clark had no complaint concerning the 1972 assessment as of the date of finality, and as they were satisfied with the increased assessment as of January 1, 1972, they had no reason to file a timely protest of the assessment and pursue the usual statutory administrative and judicial review remedies set forth in Art. 81, §§ 29, 229, 255 and 256. They were not then aggrieved and, therefore, had no right to seek review in the Maryland Tax Court and then the circuit court.[5] The basis for the taxpayers' complaint was the sewer moratorium occurring many months after the date of finality; the only remedy available at that time, with regard *600 to the 1972 assessment, was provided by § 67 (a); and the taxpayers did pursue and exhaust the § 67 (a) remedy. Under those circumstances, we held that the court did have authority to determine whether § 67 (a) was constitutionally applied, and could overturn the administrative action if § 67 (a) had been applied in an invidiously discriminatory manner. Thus, Judge Orth stated for the Court in Clark (281 Md. at 404-405):
"In such circumstances, we believe it is imperative that the inherent power of a court be not limited to ascertaining whether § 67 is constitutional on its face, but may be properly invoked to determine whether it is constitutional as applied. For example, were it otherwise an aggrieved party would be completely without recourse as to a determination by the ... [§ 67(a)] assessing authorities which was invidiously discriminatory."
After holding that a court could review § 67 (a) decisions, limited to determining whether § 67 (a) was constitutional on its face or as applied, the Court in Clark went on to consider the taxpayers' allegations and the undisputed facts. We pointed out that merely because the taxpayers were treated differently than others who may have timely protested their assessments before the date of finality, did not amount to an invidious discrimination in the application of § 67 (a), stating (281 Md. at 409-410):
"Considering the facts before the trial court, and the proper inferences to be drawn therefrom, in the light most favorable to appellees, ... we see no invidious discrimination. There was no intentional and systematic undervaluation by assessors of other taxable property in the same class. All those who sought the extraordinary relief after the date of finality, which may be granted as a matter of grace under § 67, were granted a decrease of 25%. It is clear that this did not amount to an intentional violation of the essential principle of practical uniformity. That some in another class, that is, *601 those who pursued the protest procedures to which they were entitled as of right before the date of finality, may have received a larger abatement, did not make the tax on appellees' property invalid. We hold that there was no denial of equal protection of the laws."
The Court, concluding that there had been no showing that § 67 (a) had been unconstitutionally applied, held that the defendants' motion for summary judgment should have been granted.
In light of the Clark opinion, it is readily apparent that the defendants in the instant case, like the defendants in Clark, were entitled to judgment as a matter of law. We shall assume arguendo that if the taxpayer's allegations had been sufficient to set forth a cause of action under Clark, then the Court of Special Appeals' holding concerning the alleged insufficiency in the Supervisor's affidavit would have been correct. Nevertheless, whether or not summary judgment should be granted is not dependent upon affidavits alone. The pleadings must also be considered. As Maryland Rule 610 d1. specifies, "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." (Emphasis added.) The taxpayer's petition for injunction, and his opposition to the defendants' motion for summary judgment, disclosed the nature of the taxpayer's complaint and demonstrated that the defendants were entitled to judgment.
The taxpayer's petition for injunction did not even make a conclusory allegation of unconstitutionality. Although the petition did contain the statements that the 1975 and 1976 assessments were "arbitrary, illegal [and] capricious," under Clark this is not a basis for judicial review of § 67 (a) determinations. And while it was asserted that the assessments were "discriminatory," it is clear that not every "discrimination" amounts to a denial of equal protection of the laws. Instead, as indicated in our Clark opinion, only "invidious" discrimination or discrimination without any rational basis is constitutionally infirm.
*602 Moreover, even if the conclusory allegations of the petition for injunction were construed to be assertions of unconstitutionality, the facts alleged failed to show a prima facie case of unconstitutional administrative action. The sole factual basis for the taxpayer's petition was the 1976 circuit court order requiring a reduction in the 1971 assessment, and the assertion that there had been no change in the value of the property between 1971 and 1976. These allegations, however, are insufficient to show mere illegality in the 1975 and 1976 assessments, and clearly they fail to show a violation of constitutional requirements. Under Art. 81, § 214A, the circuit court's decision concerning the 1971 assessment did not carry over to 1975 and 1976. Furthermore, it is settled that "`each annual assessment of property for tax purposes is distinct and presents its own problems.'" State Dep't of A. & Tax. v. Clark, supra, 281 Md. at 403, quoting Easter v. Department, 228 Md. 547, 551, 180 A.2d 700 (1962), appeal dismissed and cert. denied, 371 U.S. 235, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963).
Apart from the failure of the plaintiff taxpayer to allege unconstitutional administrative action, there is a more fundamental reason why the principles of the Clark case required judgment for the defendants. As previously discussed, in Clark the taxpayers had no complaint concerning their 1972 assessment as of the date of finality; they were not then aggrieved; and, therefore, they had no occasion or right to pursue the normal administrative and judicial review remedy provided in Art. 81, §§ 29, 229, 255 and 256. It was the sewer moratorium occurring several months after the date of finality which furnished the basis for their complaint, and the only remedy then available was that provided by § 67 (a). It was for this reason that the Court recognized a limited exception to the principle against reviewability of § 67 (a) decisions, permitting review to determine "whether § 67 is constitutional on its face ... [or] as applied." 281 Md. at 404-405. We did not hold that the constitutional validity of the earlier administrative action, in making the assessment prior to the date of finality, could be reviewed in the court proceeding. Instead, the review *603 recognized in Clark concerned the alleged unconstitutional application of § 67 (a).
In the present case, however, the taxpayer's complaint related to the original notices of assessments for the years 1975 and 1976 and not to any asserted illegality in applying § 67 (a).[6] There were no allegations of events after the date of finality, like the sewer moratorium in Clark, which changed the value of the property during the two taxable years in question. Unlike the taxpayer in Clark, the plaintiff here was aggrieved as of the dates of finality, could have filed timely protests, and could have pursued the normal administrative and judicial review remedy. Under these circumstances, the case does not come within the Clark holding that judicial review of § 67(a) decisions is available to determine whether the discretion under that section was being exercised in an "invidiously discriminatory" manner. Even if the taxpayer in this case had raised an issue of unconstitutional application of the assessment statutes, since his grievance existed prior to the 1975 and 1976 dates of finality, the case falls within the usual principle that when a constitutional issue goes to the application of a statute, rather than the statute on its face, resort must be had to the statutory, administrative and judicial review remedies. As the plaintiff failed to file timely protests of the 1975 and 1976 assessments, he had "no further remedy and the assessment that has been allowed to become final remains on the books for the year in question." La Belle v. State Tax Comm., supra, 217 Md. at 452.
Judgment of the Court of Special Appeals reversed and case remanded to that court with instructions to affirm the judgment of the Circuit Court for Prince George's County.
Respondent to pay costs.
NOTES
[1] Despite its name, the Maryland Tax Court is not a judicial body but is a statewide administrative agency. Shell Oil Co. v. Supervisor, 276 Md. 36, 38-47, 343 A.2d 521 (1975).
[2] Art. 81, § 214A, provides as follows:
"Whenever any person shall have appealed from, or petitioned for the reduction of, any assessment, locally determined, for ordinary taxes, a final determination of such appeal or petition providing for a reduction in said assessment shall apply, ipso facto, to any assessment for ordinary taxes locally imposed, at the same valuation as that appealed or petitioned to be reduced, on the same property, made for any tax year which is subsequent to the tax year of the assessment so appealed or petitioned to be reduced, for which the date of finality precedes the date of said final determination and for which no notice as to assessments has been sent under § 29 (a) of this article."
[3] After setting forth circumstances under which § 67 (a) relief is granted, the Supervisor stated that, as to all applications, § 67 (a) "relief is denied if the basis for the request is a difference in opinion or judgment as to the value of the property or as to the appropriate method of valuation." The Supervisor went on to state that when he considered the plaintiff's August 4, 1977, application, he determined that the basis for the claim "was a difference in opinion as to the value of the property." He further stated that in denying this application, he "applied the considerations testified to above and treated Petitioner no differently than any other applicant for Section 67 relief."
[4] Code (1957, 1978 Repl. Vol), Art. 41, §§ 244-256A.
[5] Art. 81, § 256 (a), limits the right to seek review in the Tax Court to one "claiming to be aggrieved because of any assessment ..." (emphasis added).
[6] In oral argument before us, counsel for the taxpayer acknowledged that there were no allegations of an unconstitutional application of § 67(a).
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343 S.W.2d 281 (1960)
Stuart E. GILLESPIE, Appellant,
v.
Layle Church GILLESPIE, Appellee.
No. 15756.
Court of Civil Appeals of Texas, Dallas.
January 13, 1960.
Rehearing Denied February 17, 1961.
*282 Slagle, Hughes & Kennedy, Sherman, for appellant.
Layle Church Gillespie, pro se.
CLAUDE WILLIAMS, Justice.
This is a child custody case. Appellant-father, Stuart B. Gillespie, a member of the U. S. Air Force, a legal resident of Grayson County, Texas, brought this action to recover care, custody and control of two minor children. By an earlier judgment of the Fifteenth Judicial District Court of Grayson County, Texas, rendered May 17, 1958 in an original divorce action between the same parties, the trial court entered a decree awarding the custody of the eldest boy, then fourteen years of age, to his father, appellant herein. Custody of the girl, then twelve years of age, and of the youngest child, another boy, then seven years of age was awarded to their mother, appellee herein. Some fourteen months later appellant filed this instant suit, entitled "Application for Custody" alleging that since judgment in the original action the circumstances of the parties have changed and that it is now to the best interests of said minors, that their custody be granted to appellant; that appellant "is now married, and has a comfortable home and wishes to raise said minors in a christian manner"; and that "appellee is not a fit and proper person" and that the children's "best interests and welfare is in danger of being seriously harmed while they are in the custody of the mother". Appellee denied the allegations, and after a full trial before Judge Harrison (being the same Judge who rendered the decree in the original divorce action) judgment was entered denying appellant's application for change of custody and ordered that the custody be and remain in appellee-mother. Appellant timely files this *283 appeal and assails the judgment in three points of error, grouped together, the substance of which is that the trial judge abused his discretion because the preponderance of the evidence shows that the welfare and best interest of the two minor children will be served in the custody of appellant rather than in appellee.
Our Supreme Court has held that abuse of discretion in an award of custody is a question of law requiring an apprisal of the facts. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787.
Accordingly we have carefully read the entire record in this case and the testimony material to the issue of change of condition is summarized, as follows: Following the decree of divorce appellee and the two children moved to Arizona and then to California where appellee secured employment for the support of herself and her two children. After living with relatives appellee and her children moved into an apartment containing two bedrooms, living room, kitchen and bath. Appellee testified that she moved into this apartment because she wanted a home for herself. Appellee's hours of employment are from 8 o'clock in the morning until 4:30 in the afternoon and while she is working the children attend school. When the young boy gets out of school he goes to his grandmother's house or to a Cub Scout meeting, while on other occasions the sister takes care of her brother at home. Appellee admits that she goes out on dates with gentlemen friends on occasions. On one occasion one of her friends remained at the apartment until about 1:00 or 1:30 in the morning and on another occasion, faced with an emergency, he spent the night at the apartment but slept in the bed with the young boy. On occasions the friend brings intoxicating beverages into the apartment but there is no evidence of drunkenness there. Both children have dental trouble which one doctor testified was due to "nutritional condition"; or "too much starches and sweets". Appellee does attend church regularly and sees to it that the children are being raised in the Episcopal Church. The oldest girl is a member of a sorority at school and sang at both the school choir and the church choir. The young boy's activity is chiefly that of a member of the Cub Scouts. Contrasted to this, appellant testified that he had remarried, his second wife having two children by a previous marriage, and the family is living in a home at New Braunfels, Texas, which is described as a good home with ample yard for the children to play. Appellant's pastor testified to his good character and the suitability of the home. The little girl, Layle Christine, known as Deedee testified that she thought that she would rather live at New Braunfels than go back to California. The main reason she wanted to live in New Braunfels was that they had a new house and a swimming pool and that she and her brother could have a better time there. Judge Harrison interrogated her:
"The Court: You like it better down here. Is that what you are saying? Answer: No. Equal. I don't know. It is a bigger yard and everything. And Billy can have a lot of fun and I can have a lot of fun.
"The Court: Is that the reason you said you like it better than in California? Answer: And the people, but Mom never did anything wrong.
"The Court: About equal on that. O.K. Thank you very much."
The party seeking a change of custody has the burden of proving that since the judgment of divorce conditions have so changed as to render the other parent an improper custodian, or that the welfare of the children demands a change. Reid v. Horton, Tex.Civ.App.1954, 278 S.W.2d 626. To justify taking the custody from the mother to whom the children were awarded in the suit for divorce, it is not necessary to show that she is any worse than she was at the time the children were awarded to her. If it appears that she is living in open violation of law and morals, and the father shows that he is of *284 good moral character and is not only desirous but further able to support and maintain the children, custody may properly be awarded to him. The mere fact that the children have been once awarded to the mother does not require they shall be left in her custody in an atmosphere of lawlessness and corruption. 15-B Tex.Jur. § 255, p. 95.
However, here we are presented with a decree denying the application of change of custody which carries with it implied findings by Judge Harrison that there had been no change of condition which would justify the allegations made by the father. It is to be presumed that the trial court endeavored to award the children to the person best fitted to care for them, and his judgment must be construed fairly in an effort to harmonize it with the facts and the law. Haynes v. Haynes, Tex.Civ.App.1945, 191 S.W.2d 81; Sawyer v. Bezner, Tex.Civ.App.1947, 204 S.W.2d 19.
A very clear case of abuse of discretion must appear before the appellate court will interfere with the finding of the trial court in a custody case. 15-B Tex. Jur. § 262, p. 113. Kollenborn v. Kollenborn, Tex.Civ.App.1954, 273 S.W.2d 660; Bryant v. Birdsong, Tex.Civ.App.1955, 277 S.W.2d 922.
It is not for this court to decide what character of decree it would have rendered had it been sitting as trial court. The question before us is not whether we would have held, as the trial court held, but whether the trial court abused its discretion. Roberts v. Jolly, Tex.Civ.App. 1955, 282 S.W.2d 436. The trial judge is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and since he had the opportunity to observe the parties and weigh their respective qualifications he is in a better position to determine what will be to the best interest of the children than can be ascertained by reading the record, consequently an award of custody will not be disturbed on appeal unless we can say, in the light of the evidence, that the trial court closed his eyes to the welfare and best interest of the children involved. Wooster v. Thompson, Tex.Civ.App.1955, 285 S.W.2d 954.
Applying these well-defined principles of law to the facts contained in this record we are unable to agree with appellant that Judge Harrison's judgment in this case is so contrary to the overwhelming weight and preponderance of the evidence that it should be set aside and custody awarded to the father, as a matter of law. The evidence does not reveal that these children are in any danger or are they being subjected to an atmosphere of immorality or illegality.
Finding no error the judgment of the trial court is, in all things, affirmed.
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623 F. Supp. 409 (1985)
Daniel G. THOMPSON, Plaintiff,
v.
AMERICAN MOTOR INNS, INC., Defendant.
Civ. A. No. 83-0013-A.
United States District Court, W.D. Virginia, Abingdon Division.
December 4, 1985.
*410 Mary Lynn Tate, Abingdon, Va., for plaintiff.
S.D. Roberts Moore, Roanoke, Va., for defendant.
MEMORANDUM OPINION
GLEN M. WILLIAMS, District Judge.
Daniel G. Thompson, plaintiff, a resident of Virginia, brought this action against his former employer, American Motor Inns, Inc., a Virginia corporation, alleging breach of contract and unlawful discrimination based upon age. Plaintiff contends that he was given no warning notice as provided for in defendant's Employee Handbook and alleges that age was the motivating factor in the decision to fire him. Defendant contends that plaintiff was an at-will employee, and, therefore, its termination of plaintiff's employment was not a breach of contract nor was the decision based on age.
The court has jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 626(c). The parties chose not to have the case heard before a jury as provided for in 29 U.S.C. § 626(c)(2). The court agreed to await the presentation of evidence concerning the amount of damages pending the outcome of the breach of contract claim. At the close of plaintiff's evidence defendant made a motion for a directed verdict on the breach of contract claim on grounds that plaintiff was an at-will employee. The court stated that based on the testimony it could not grant defendant's motion.[1] After all the evidence had been presented, this court ruled from the bench that Thompson failed to prove a meritorious claim of unlawful age discrimination. The court found that although plaintiff had made a prima facie case of discrimination, defendant had shown a legitimate nondiscriminatory reason for firing which plaintiff had failed to rebut by a showing of pretext. The parties were given time to brief the remaining issue.
*411 The remaining issue concerns (1) plaintiff's status as an employee at will or as an employee under a contract, and (2) if a contract governs the working relationship, whether defendant breached the contract when it fired Thompson. The court must determine whether in these circumstances the policies and procedures incorporated into the employee handbook, which was distributed to each new employee, constituted a binding agreement on the part of this employer to follow its own policy for firing employees. In essence, the court must determine if this employee handbook is contractually binding on American Motor Inns.
I.
Thompson was hired on May 8, 1978 as a full time desk clerk for the Marion, Virginia Holiday Inn and later assumed the additional duties of a night auditor. American Motor Inns, Inc. (AMI) operates Holiday Inns throughout Virginia, and other states. AMI gives each new employee an employee handbook when hired and requires that it be read. Each new employee is required to sign a copy of the Benefit Checklist (in the back of the handbook) and a copy of the Employee Conduct Code. The signed copies are then placed in the employee's personnel file. The purpose served by this procedure is to indicate to AMI that the employee understands the rules, regulations and benefits associated with AMI employment. Ms. Lowe, the General Manager of the Marion Holiday Inn, was responsible for ensuring that each new employee was aware of and understood AMI policies. She also was responsible for hiring Thompson and instructing him in the requirements and procedures of his job.
The employee handbook provides, inter alia, that new employees have probationary status for ninety (90) days after which they become permanent employees.[2] The handbook specifically sets out a warning procedure which is to be used to give an employee verbal and/or written notice that he has committed an infraction of the employee conduct code. This notice-warning procedure serves two purposes. First, it gives an employee notice of what type of conduct will not be tolerated by AMI. Second, it gives AMI "just cause" for firing an employee who has demonstrated that he cannot comply with AMI policies.
The employee conduct code is given to the new employee on a separate one page printed form and is incorporated by reference into the employee handbook. The first section lists ten acts which may give rise to "just cause for immediate dismissal."[3] The second section, which is the notice-warning section, lists seventeen acts which "may be considered just cause for remedial action which could range from oral or written reprimand to suspension from work without pay to dismissal."[4] The conduct policy also states that "these rules are placed in written form for the benefit of you and your fellow employees so that all employees will receive the same fair treatment." According to the employee handbook, this conduct policy was to be posted in several locations within each Inn.
This conduct policy, incorporated into the AMI Employee Handbook at pages 3 and 4, is followed by the warning procedure section. That section provides:
Your Inn uses a written and verbal warning notice system to make certain you receive a full explanation of any shortcomings and that you understand the seriousness of the matter.
Employees who fail to meet performance standards; who violate company policy; or who fail to follow company rules will be given verbal and/or written warning notices.
Three (3) warning notices will result in dismissal.
Severe infractions, such as dishonesty, drunkeness [sic], insubordination, or immorality *412 will not be tolerated and are grounds for immediate dismissal without a warning notice.
The course of events which led to Thompson's firing is as follows.
On the night of January 11, 1982, Mr. McColliam, houseparent for the Mount Rogers Shelter Home for Children, was forced to remove five children from the home and find other accommodations.[5] Thompson was on duty when McColliam came to the Inn.[6] McColliam filled out the registration form for two rooms but did not indicate the number of people in his party. At no time did McColliam mention that children were in his party. When McColliam attempted to pay for the rooms with a personal check, Thompson told him that company policy required proper identification in order to accept payment by personal check.[7] McColliam had neither his driver's license nor any type of identification with him. Thompson called other area motels to inquire if they would accept McColliam's personal check without identification. The responses were negative. McColliam left with no mention of who he was or why he needed the rooms.
On January 16, five days later, Mrs. Rosamond McCarty, a member of the board for the Mount Rogers Home, wrote a letter to Mr. Adolph Krisch, chairman of the board of AMI, copying to Mr. Bill Lemmon, owner of the property leased to AMI, complaining of the incident. (Exhibit # 1) On January 18, Krisch wrote to Mr. Poff, Senior Vice President and Regional Supervisor, instructing him to immediately fire Thompson. (Exhibit # 2) A copy of this letter was sent to Mrs. McCarty, Mr. Lemmon and Ms. Lowe. Ms. Lowe questioned Thompson about the incident, and determined he had followed company policy and had done nothing wrong when he turned McColliam away.[8]
Poff referred the matter to Mr. Graham, the area supervisor. Graham met with Mr. Lemmon, and then with both Ms. Lowe and Mr. Thompson. He determined the incident had occurred essentially as stated in Mrs. McCarty's letter. However, he did not talk with Mrs. McCarty or Mr. McColliam. Graham reported back to Poff, who told him to tell Thompson he was fired as of January 22.[9]
II.
As a preliminary matter, the court notes that it retains jurisdiction over the breach of contract claim despite dismissal of plaintiff's claim under 29 U.S.C. § 621, et seq. Cf., United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-726, 86 S. Ct. 1130, 1138-1139, 16 L. Ed. 2d 218 (1966) (Court retained jurisdiction over pendant state law claim when federal claim was dismissed before trial). In the case sub judice, both issues were tried and this court now assumes pendant jurisdiction over the breach of contract claim.
A. THE ERODING DOCTRINE OF EMPLOYMENT AT-WILL
In order to determine if plaintiff has a cognizable claim, this court must look to the law of Virginia to establish whether plaintiff was merely an at-will employee or an employee working pursuant to a contract. The law in Virginia concerning employment at-will is undergoing change just as it is in many, if not all, states.[10] The *413 anachronistic doctrine of employment at-will has not been blindly followed. Instead, many courts, including the Virginia Supreme Court, have limited its application. Courts which have considered the issue of whether terms within employee handbooks or company policy manuals are contractually binding on the employer are split in their decisions.[11] However, exceptions have been carved out of the antiquated doctrine of employment at-will in order to recognize that employment relationships in certain circumstances are often subject to terms and conditions of implied contracts.[12]
The precise issue, as presented by the facts of this case, has not yet been resolved by the Virginia Supreme Court. But the path followed by the Virginia Supreme Court that of traditional contract analysis in cases touching on the doctrine of employment at-will[13] will guide this court in determining whether the AMI Employee Handbook contains enforceable contract provisions as will the principles gleaned from other cases that dealt with the same issue.
B. THE LAW IN VIRGINIA
Virginia follows the doctrine of employment at-will. Conrad v. Ellison-Harvey Co., 120 Va. 458, 466, 91 S.E. 763, 766 (1917); See Barger v. General Electric Co., 599 F. Supp. 1154 (W.D.Va.1984). Virginia also recognizes that a general hiring is terminable at the will of either party in the absence of a statute, custom or contract fixing the term and the conditions. Cales v. Chesapeake & Ohio Ry. Co., 300 F. Supp. 155, 157 (W.D.Va.1969) (citing Title Ins. Co. v. Howell, 158 Va. 713, 718, 164 S.E. 387, 389 (1932)). And similarly, it is settled doctrine in Virginia that where no specific time is fixed for the duration of an employment, there is a rebuttable presumption that it is an employment at-will, terminable at any time by either party. Norfolk Southern Ry. Co. v. Harris, 190 Va. 966, 976, 59 S.E.2d 110, 114 (1950). The court in Norfolk Southern, 59 S.E.2d at 115, recognized that an employer's agreement not to dismiss without just cause rebutted the presumption and, thereby, fixed the duration of the employment.[14]
*414 Recently in Barger, at 1156, the district court applied Virginia law and concluded that where there was an employment policy in effect, the duration of that employment was fixed. The plaintiff had challeged the company's reduction in force policy contending that G.E. did not offer him a position that was within his path of progression and to which he was entitled under the terms of the Employee Handbook. The issue presented in Barger, at 1158, was whether the employee handbook provisions could be construed as enforceable and contractually binding. One conclusion drawn from the very thorough analysis of the at-will doctrine in Virginia by the court was that the at-will doctrine is not a substantive rule of law but is merely a rebuttable presumption. Barger, at 1159. The court further stated, at 1161, that courts may find that an employer has contractually surrendered his right to terminate at-will when, e.g., the circumstances create an implied unilateral contract.
The court in Barger, at 1161, summarized the important principles of Virginia law in connection with the at-will doctrine.
First, an employer may make several different promises in addition to a promise of salary in exchange for the employee's single promise to faithfully render his services; there is no failure of consideration so long as both parties have made some obligation. Second, an employer can contractually surrender his power to terminate at-will. Even if the employee can still quit at will, the contract is not void for lack of consideration; there is no requirement of complete mutuality of obligation. Third, an employee's continued service and his failure to exercise his power to terminate his employment is sufficient consideration for an additional promise by the employer which modifies the terms of the employment contract.
C. RECENT DEVELOPMENTS IN OTHER JURISDICTIONS
Courts in other jurisdictions faced with the question of the enforceability of provisions in employee handbooks resorted to rules of construction to find implied and enforceable contractual rights. The analysis developed in cases such as Toussaint v. Blue Cross and Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980), Cleary v. American Airlines, 111 Cal. App. 3d 443, 168 Cal. Rptr. 722 (1980), Weiner v. McGraw-Hill, 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982), and the cases discussed below, is applicable to the facts before this court. Those cases are also illustrative of the issue to be decided in the case sub judice.
Recently the New Jersey Supreme Court in Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284, 491 A.2d 1257 (1985), heard a case similar to the one at bar. In his action for breach of contract, plaintiff claimed that the express and implied promises in defendant's employment manual created a contract under which he could not be fired at-will, but rather only for cause, and then only after the procedures outlined in the manual were followed. Hoffman-LaRoche had distributed an "apparently carefully thought-out policy manual" intended to cover all of its employees. The court stated that when such a policy manual is involved there is no individual lifetime contract, rather, if there is a contract, it is one for a group of employees for an indefinite term and one that when fairly read may not be terminated by the employer without good cause. Woolley, 491 A.2d at 1263.
The court discussed controlling case law and found that those cases had dealt only with individual contracts for lifetime or long-term employment for particular employees. It distinguished those cases on the basis that none involved a contract put forth by the employer applicable to all employees, such as the company promulgated policy manual at issue. The court pointed out that the at-will rule has been severely criticized by commentators who argue that the rule no longer works in today's economic climate, and it made clear its intention not to adhere to rules regularly leading to the conclusion that an employer can fire an employee at-will, with or without just cause. Woolley, at 1261. The court opined *415 that the underlying interests involved in the relationship between the employer and its workforce call for compliance by the employer with certain rudimentary agreements voluntarily extended to the employees.
One of the court's justifications for finding that the terms in the Personnel Policy Manual were binding on Hoffman-LaRoche was that in light of the context of the manual's preparation and distribution it would be almost inevitable that an employee would regard it as a binding, legally enforceable commitment due to the appearance of corporate legitimacy. The court concluded that
unless the language contained in the manual were such that no one could reasonably have thought it was intended to create legally binding obligations, the termination provisions of the policy manual would have to be regarded as an obligation undertaken by the employer. It will not do for the company to say it did not mean the things it said in its manual to be binding. Our courts will not allow an employer to offer attractive inducements and benefits to the workforce and then withdraw them when it chooses no matter how sincere its belief that they are not enforceable.
Woolley, at 1265-66.
Another justification for finding an implied contract from the terms and conditions set forth in the manual concerned the job security provisions. The court stated that
the reasons for giving such provisions binding force are particularly persuasive. Wages, promotions, conditions of work, hours of work, all of those take second place to job security, for without that all other benefits are vulnerable.... Job security is the assurance that one's livelihood, one's family future, will not be destroyed arbitrarily; it can be cut off only for good cause, fairly determined. Hoffman-LaRoche's commitment here was to what working men and women regard as their most basic advance. It was a commitment that gave workers protection against arbitrary termination. ... Whatever Hoffman-LaRoche may have intended, that which was read by its employees was a promise not to fire them except for cause.
Woolley, at 1266.
The court applied traditional rules of contract interpretation in analyzing the terms and conditions in the employee manual in light of the surrounding circumstances. It concluded that the employee manual was a binding unilateral contract. The court found (1) that the manual was an offer seeking continued work in compliance with company policy; (2) that acceptance was manifested by the employees' continued work; and (3) that consideration was provided by the employees' continued work when they had no obligation to continue. The court adhered to the principle that as long as some consideration is furnished the quantity or quality is of no consequence to the binding effect of a promise.
This court agrees with the reasoning in Woolley. Cf. Norfolk Southern Ry. Co. v. Harris, 59 S.E.2d at 115 (where the court discussed consideration for employer's promise not to fire without just cause). See also Kiser v. Amalgamated Clothing Workers, 169 Va. 574, 583-85, 194 S.E. 727, 731 (1938) and Twohy v. Harris, 194 Va. 69, 81, 72 S.E.2d 329, 336 (1952) (where the court discussed consideration being furnished by an employee's foregoing of his right to quit). See also, Barger v. General Electric, at 1161 (where the court summed up the at-will doctrine in Virginia).
In another recent and persuasive case the Washington Supreme Court used an implied contract analysis to construe terms in an employment policy manual. The court in Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1087 (1984) adopted the approach taken by a number of courts that
an employer and employee can contractually obligate themselves concerning provisions found in an employee policy manual and thereby contractually modify the terminable at-will relationship.... Under this approach the requisites of contract *416 formation, offer, acceptance and consideration are necessary predicates to establishing that policies in an employment manual are part of the employees' original employment contract as modified by the parties. Accord, Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (1983).
The court in Thompson held in part:
that if an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship.
Denial of defendant's motion for summary judgment in Thompson, however, was premised on a public policy exception to the at-will doctrine for wrongful discharge. The court recognized a cause of action in tort if the discharge of the employee "contravened the clear mandate of public policy." Thompson, 685 P.2d at 1089.
III.
Upon evaluation of Virginia law and the relevant state and federal cases, the court concludes that the employee at-will doctrine is merely a rebuttable presumption and not a substantive rule of law. In absence of an express provision or specific contract setting a definite period of employment, the presumption of an employee's at-will status may be rebutted by presenting evidence which shows that the parties intended and/or understood that the term of employment was fixed by reference to some articulable standard or procedure. There must be evidence of a custom, practice or policy that governs the employer-employee relationship. Evidence sufficient to establish an implied contract concerning duration of employment effectively rebuts the presumption of at-will status and binds the employer to the terms of such a contract.
A. IMPLIED UNILATERAL CONTRACT
By offering fair treatment pursuant to its warning procedure, AMI impliedly promised to abide by its own policy for disciplining and discharging employees who commit infractions of AMI's conduct policy. AMI has listed specific types of misconduct that are grounds for issuing warnings and types of misconduct which give AMI just cause for immediate dismissal. And AMI has set out the procedures for implementing the warning and dismissal policies. Therefore, AMI has gone beyond merely agreeing not to dismiss without just cause; it made specific promises to its employees not to dismiss without three warnings or just cause. For these reasons, the court finds that the term of employment was not at-will, and, therefore, holds that AMI has fixed the duration of employment according to the procedures articulated in the employee handbook.
The court further finds that the facts of the case at bar warrant application of traditional rules of contract analysis. It is apparent that AMI, through its employee handbook, is seeking performance of duties in accordance with its stated goals. To induce the employees to carry out their duties in the manner desired by AMI, AMI has spelled out terms and conditions of employment and promised fair treatment and additional benefits. From the tenor of the language in the employee handbook, AMI has created an implied unilateral contract to govern the working relationship between it and its employees.
The language of the AMI employee handbook, which also incorporates the official AMI conduct code, is clear and unambiguous. It is reasonable to construe an offer from the provisions in the handbook. AMI offers, in addition to salary, continued employment, fair treatment and other benefits to those employees who follow its policies. An employee accepts the terms of the offer by reading the handbook, signifying that he understands the terms and conditions of employment, and is aware of what is expected *417 from him so that he may benefit from all that AMI is offering. Thompson accepted AMI's offer by doing that and by working according to those terms and conditions. Consideration for AMI's implied promise to follow its own policies was furnished by Thompson's continued work. Thompson was not under any obligation to continue working for AMI, but he did continue-thereby forfeiting his right to quit. Since mutual obligation is not required for there to be a binding and enforceable unilateral contract, Thompson's continued service was sufficient consideration to make the provisions in the employee handbook binding on AMI. AMI through its employee handbook set the tone for the employment relationship. The court finds it difficult to believe that AMI would make false promises of job security and deliberately mislead employees. AMI has created a relationship "instinct with obligation," Toussaint, 292 N.W.2d at 892, and it would be patently unfair to allow AMI to offer with one hand what it takes away with the other.[15]
AMI created a sense of job security when it modified the at-will status of its employees. This sense of job security was enhanced by AMI when it distinguished between probationary and permanent employees and when it stated its official policy for firing employees. Employees were essentially instructed that as long as they abided by AMI policy their continued employment was guaranteed. In accordance with Hercules Powder Co. v. Brookfield, 189 Va. 531, 540, 53 S.E.2d 804, 808 (1949) and Dulany Foods, Inc. v. Ayers, 220 Va. 502, 508-09, 260 S.E.2d 196, 201 (1979), the court finds that the job security provisions in the AMI handbook were more than a mere gratuity, terminable at will; they are contractually binding on AMI.
B. BREACH OF CONTRACT
Since the court has found that the working relationship between AMI and its employees was governed by an implied unilateral contract, the second issue of whether AMI breached that contract when Thompson was fired is ready to be addressed.
Briefly, the court has determined that: (1) AMI, on its own volition, wrote and distributed an employee handbook in which it spelled out official company policies; (2) "permanent" employment was contingent upon compliance with company policies; (3) employees were made aware of the terms, conditions and policies of their employment; and (4) AMI was contractually obligated to abide by its own policies. The record shows that Thompson had been an excellent employee and had never before been given notice that he had not complied with AMI policies.
The evidence clearly shows that Thompson was wrongfully discharged. AMI has ironically contended that Thompson was fired for violating a provision of its employee conduct policy that gave AMI just cause for immediate dismissal.[16] The policy AMI relies on states that AMI has just cause for immediate dismissal if an employee is disrespectful or discourteous to customers or supervisors.[17] The court finds nothing in the record which shows Thompson acted in such a manner. It appears to the court that Thompson was fired for following company policy regarding his request for proper identification from McColliam. The record is totally lacking in evidence of any disciplinary problems with Thompson.
AMI's act of firing him was clearly unjust and uncalled for in light of the circumstances which precipitated the decision and in light of AMI's promises of fair treatment. AMI simply failed to follow its own *418 policies and procedures for firing Thompson. Therefore, the court finds that AMI wrongfully discharged Thompson and thereby breached the provisions of its contract regarding the employee conduct code and the warning procedures. Because AMI was bound by its agreement, it is liable for damages incurred by Thompson as a result of the wrongful discharge.
IV.
Based on the foregoing discussion, the court holds that the provisions in the AMI Employee Handbook regarding the notice-warning and termination procedures in particular constitute an implied unilateral contract legally binding and enforceable upon AMI. The court further holds that AMI breached its contract when it fired Thompson without just cause and without the required warnings.
An Order will be entered accordingly based upon the above and the record before the court.
NOTES
[1] See Ellis v. International Playtex, Inc., 745 F.2d 292 (4th Cir.1982).
[2] AMI Employee Handbook, at 2.
[3] See Defendant's Exhibit # 5. AMI Employment Conduct Policy A.1-10.
[4] See Defendant's Exhibit # 5, AMI Employment Conduct Policy B.11-27.
[5] The reason they were forced to leave was that the electricity had gone off and the temperature outside was around ten degrees below zero.
[6] Thompson testified that he saw two vehicles drive under the carport, but was unable to see inside either vehicle.
[7] The record shows that AMI did not dispute that it was company policy to require proper identification upon registration when a guest indicated payment was to be by personal check.
[8] Ms. Lowe further testified that Thompson was an excellent employee and that his personnel file contained no complaints or warnings.
[9] The effective date of Thompson's termination was February 8, 1982 due to accumulated sick leave and vacation time.
[10] For an interesting discussion and analysis of the evolution of the employment at-will doctrine, see Note, Employee Handbooks and Employment At-Will Contracts, 1985 Duke L.J. 196. The author states that as of 1983, twenty-nine states had granted some form of common law exceptions to the at-will doctrine; five other states, as well as the District of Columbia, have indicated their willingness to do so (at 199).
[11] For cases demonstrating courts' unwillingness to give contractual force to such documents see cases cited in Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284, 491 A.2d 1257, 1262 (1985) and in Barger v. General Electric, at 1161, n. 8, and 1985 Duke L.J. 196, 205 at n. 48. For cases in which enforceable contract rights have been found see Barger, at 1164, n. 8, and 1985 Duke L.J. 196, 205 at n. 48.
[12] Over the years the courts have generally recognized three types of modifications of the employment at-will rule: (1) public policy exception; (2) tort theory exception (or the duty of good faith and fair dealing); and (3) implied contract exception. Comment, Protecting Employees At-Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev. 1931, 1935 (1976).
[13] See, e.g. Hercules Powder Co. v. Brookfield, 189 Va. 531, 540, 53 S.E.2d 804, 808 (1949), Dulany-Foods, Inc. v. C.A. Ayers, 220 Va. 502, 508-09, 260 S.E.2d 196, 201 (1979) and Fraizer v. Colonial Williamsburg Found., 574 F. Supp. 318, 320 (1983) and Barger v. General Elec., at 1161 (both relying on Virginia law to hold provisions binding on employer).
The recent case of Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797, 801 (1985), upon which AMI has placed much reliance, is inapposite for this case. That case recognized an exception to the at-will doctrine by acknowledging a cause of action in tort for violation of established public policy in connection with Bowman's wrongful discharge.
[14] The court found that
the employment was, by the terms of the contract, to continue until the plaintiff gave to the defendants just cause to end it ... The defendant's agreement that it would not discharge plaintiff without just cause was a thing of value to him, a safeguard against the loss and embarrassment to be expected from an arbitrary discharge. The defendant's agreement that it would not be done was a term of plaintiff's employment, compensation for his work which he had earned along with his wages. The defendant ought not to take that promised reward from him without incurring a penalty for violating its agreement. It was a promise in return for services which plaintiff performed and which furnished sufficient consideration for a binding contract.
[15] Although the doctrine of promissory estoppel was not raised by Thompson, it could be relied upon as a rationale for enforcing AMI's promises in its employee handbook. AMI should have expected its employees to act or to forebear to act in reliance on those promises.
[16] The irony of this matter is that AMI first contends it can fire at-will, without reason; yet contends that it fired Thompson according to its policies. Such a capricious stance comports neither with the spirit nor with the plain meaning of the AMI Employee Handbook.
[17] Employee Conduct Policy, # 6 (Exhibit # 5).
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623 F. Supp. 269 (1985)
Ramon Acevedo RIVERA, et al., Plaintiffs,
v.
INSTALLATION CLUB SYSTEM, Fort Buchanan, Puerto Rico, et al., Defendants.
Civ. No. 81-1713 HL.
United States District Court, D. Puerto Rico.
October 16, 1985.
*270 Samuel C. Váquez Matias, San Juan, P.R., Hector L. Marquez, Hato Rey, P.R., for plaintiffs.
Raymond E. Morales, Asst. U.S. Atty., Hato Rey, P.R., John S. Albanese, Civilian Personnel Litigation, Office of the Judge Advocate General, Dept. of Army, Washington, D.C., for defendants.
OPINION AND ORDER
LAFFITTE, District Judge.
Plaintiffs, 24 former employees of defendant Installation Club Systems ("ICS"), brought this action alleging retaliatory discharge under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 215(a)(3) and 216(b). Defendants are ICS, a nonappropriated fund instrumentality of Fort Buchanan, Puerto Rico, and various ICS personnel officials. Plaintiffs seek reinstatement and $300,000 in lost income and lost vacation, retirement and medical benefits.
Before the Court is defendants' Rule 12(b) Motion to Dismiss for failure to state a claim and for lack of jurisdiction. The Court finds it has jurisdiction and that plaintiffs have established a cause of action under 29 U.S.C. sections 215(a)(3) and 216(b). Defendants and plaintiffs have also filed cross-motions for Summary Judgment. The Court denies defendants' Motion to Dismiss on both grounds and denies both parties' Motion for Summary Judgment.
With one exception, plaintiffs were each a party to a law suit against defendants for back wages and overtime filed in Puerto Rico Superior Court on December 17, 1976.[1] This claim was filed pursuant to Puerto Rico Law on Working Hours and Days, 29 L.P.R.A.. Sections 271-279, which is similar in purpose and remedy to the minimum wage and maximum hours provisions of the FLSA, 29 U.S.C. Sections 206 and 207.[2] This claim was settled in July, 1981 for the amount of $530,000.00.
Plaintiffs allege that they were harrassed, had their work hours decreased and were ultimately discharged by defendants in 1980 in retaliation for instituting the 1976 wage claim. Plaintiffs claim that defendants' action violates 29 U.S.C. sections 215(a)(3) and 216(b). Defendants argue that ICS, as a federal employer, is not liable under these provisions of the FSLA and plaintiffs, as federal employees, are not protected. Based on a plain reading of the FSLA, defendants' argument is without merit.
ICS is a government agency known as a nonappropriated fund instrumentality ("NAFI"). An NAFI does not rely on Congressional appropriation for its budget. It generates its own funds through activities, services, and product sales. See Standard Oil Co. v. Johnson, 316 U.S. 481, 62 S. Ct. 1168, 86 L. Ed. 1611 (1941); Bramblett v. Desobry, 490 F.2d 405 (6th Cir.1974). In 1974 Congress expanded the scope of the FSLA to include the U.S. Government and public agencies, such as an NAFI, as "employers" within the meaning of the Act. 29 U.S.C. 203(d) and (x), Pub.L. 93-259. The 1974 amendments also extended protection to employees of an NAFI. 29 U.S.C. 203(e)(2)(A)(iv).
Under Section 216(b) of FSLA, an "employer", including a public agency, is exposed to liability for a Section 215(a)(3) violation. As amended in 1977, this provision states:
"Any employer who violates section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion and the payment of wages lost and an additional amount as liquidated damages. An action to recover the liability prescribed in either the preceding sentences may be maintained *271 against any employer (including public agency) in any Federal or State court of competent jurisdiction ..." (Emphasis added.)
Section 215(a) makes it unlawful for:
"(a) ... any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint ... under or related to this chapter, or has testified or is about to testify in any such proceeding." (Emphasis added.)
The term "person" is defined in section 203(a) as: "an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons." 29 U.S.C. 203(a).
Defendants argue that "person" should be construed more narrowly than the term "employer." Since the U.S. Government was not included in the definition of "person" when FSLA was amended in 1974, a public agency such as ICS cannot be held liable under section 215(a)(3). This argument is untenable for several reasons. Most specifically, courts have interpreted the term "person" to be more broadly construed than the term employer. Bowe v. Judson C. Burns, 137 F.2d 37 (3rd Cir. 1943). In Bowe, the court held that a labor union was included in the term "person", and could be liable under section 215(a)(3), even though labor organizations are specifically excluded as "employers" by section 203(d). The court in Bowe found that Congress intended to include a party within the meaning of "person" whether or not he is an "employer" for purposes of the wage and hour provisions of the FSLA. Id. at 38.
Based on the reasoning above, the Court finds that plaintiffs have stated a valid claim under Section 215(a)(3) and 216(b) against defendant ICS and the ICS officials.
Defendants also argue in their Motion to Dismiss that this Court does not have jurisdiction since plaintiffs are asking for monetary damages and ICS, as a U.S. employer, has not waived sovereign immunity. The Court rejects this argument. We find that the United States government waived its immunity in Section 216(b) which provides that a public agency will be liable for lost wages and liquidated damages, if a section 215(a)(3) violation is proven. Jurisdiction is proper, therefore, under 28 U.S.C. 1331: a civil action arising under a law of the United States.
Having found that the Court has jurisdiction and plaintiffs have stated a claim under sections 215(a)(3) and 216(b), we consider the cross motions for summary judgment. Summary judgment lies only when there exists no genuine issue of material fact and the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Rule 56(c) sets forth a bifurcated standard. The Court must first determine whether a material issue exists. "Material issue" has been defined as an issue which affects the outcome of the litigation. Hahn v. Sargent, 523 F.2d 461 (1st Cir.1975). Secondly, the Court must determine whether the issue is genuine. A genuine issue exists whenever there is "the slightest doubt as to the facts." Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir.1967) [quoting Peckham v. Ronrico Corp., 171 F.2d 653 (1st Cir.1948)]. It is widely recognized that summary judgment is an extreme remedy and should not be granted unless it is clear beyond controversy that moving party is entitled to judgment as a matter of law. Wright, Miller & Kane, Federal Practice and Procecure: Civil 2d Section 2712 (1984). In cases, such as the present one, where the state of mind of a party is at issue, the courts are particularly reluctant to grant a motion for summary judgment. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S. Ct. 486, 491, 7 L. Ed. 2d 458 (1982); Maiorana v. MacDonald, 596 F.2d 1072, 1077 (1st Cir. 1979).
Plaintiffs claim they were discharged in 1980 by defendants in retaliation for filing suit in the Puerto Rico Superior Court. In support of this claim they submitted documentation which establishes that defendants hired 68 employees between 1979 and 1980. Twelve of the new employees were *272 hired "under better working conditions, job status and job security" to do the same work previously done by plaintiffs. Plaintiffs also allege that the ICS was solvent and there was no financial need to discharge plaintiffs. They presented a series of figures to show that the three branches of the ICS had each earned money in 1979. In their Response to Request for Admissions, defendants admit each of these allegations.
To counter plaintiffs' allegations, defendants explain that plaintiffs were discharged as part of a reduction-in-force plan. This plan was undertaken in 1980 following a U.S. Army Audit which found ICS to have a net loss of $188,000. ICS was directed by the Club and Community Activities Management Directorate of the U.S. Army in Washington, D.C., to immediately reduce their labor force. Defendants establish that plaintiffs' financial figures are misleading, because they indicate ICS sales, not profits. Based on the documentation submitted by defendant, the Court is satisfied that ICS was in financial difficulty in 1979 and was required by the Central Club System of the U.S. Army to balance its budget. Were the financial condition of ICS the only material issue in the case, the Court would find no genuine dispute of fact and grant summary judgment in favor of defendant.
However, plaintiffs also have presented evidence that they were discharged in 1980, while other employees, including the 68 who were hired between 1977 and 1980, remained employed. Defendants attempt to refute the inference of retaliation drawn from this allegation by providing documentation to show that the goal of reducing labor costs by 1981 had been achieved. In addition, they argue their action was not retaliatory since only 29 employees of the 46 employees who participated in the 1976 settlement were affected by the reduction-in-force plan and 13 individuals not associated with the 1977 suit were affected.
Defendants make these arguments without providing the court with evidence on how the Reduction-in-Force plan was implemented. Defendants failed to submit the names of all employees on the payroll in 1980 or the names of discharged employees. They also failed to submit evidence to show that an objective criteria was used to determine which employees would be laid off. Without this evidence which would indicate that the reduction-in-force plan was applied fairly and objectively, the Court finds that a genuine issue exists as to defendants' motivation for discharging plaintiffs. Defendants are not entitled to judgment as a matter of law. Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922 (1st Cir.1983).
For the above reasons defendants' Motion to Dismiss and the cross-Motions for Summary Judgment are DENIED.
IT IS SO ORDERED.
NOTES
[1] Plaintiff Lorraine Gorshi was added to this suit in plaintiffs' amended complaint. She did not participate in the 1976 law suit but had offered to appear as a witness.
[2] 29 L.P.R.A. Sections 273 and 274 provide for overtime compensation, as does 29 U.S.C. section 207, with certain modifications not pertinent herein.
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181 Conn. 286 (1980)
NICHOLAS D. BUCKLEY
v.
WARDEN, CONNECTICUT CORRECTIONAL INSTITUTION, SOMERS
Supreme Court of Connecticut.
Argued April 1, 1980.
Decision released June 24, 1980.
COTTER, C. J., LOISELLE, BOGDANSKI, HEALEY and A. ARMENTANO, JS.
*287 Stephen J. O'Neill, assistant attorney general, with whom, on the brief, was Carl R. Ajello, attorney general, for the appellant (defendant).
James V. Guarino, with whom, on the brief, was Patricia C. Farrell, for the appellee (plaintiff).
LOISELLE, J.
The plaintiff petitioned for a writ of habeas corpus claiming that the warden failed to credit him with fourteen days "good time" as required by General Statutes § 18-98a.[1] The trial court granted the petition and directed the warden to credit the petitioner with fourteen days to be deducted from his sentence. The defendant appealed. The sole issue raised on appeal is whether the trial court erred in its interpretation of § 18-98a.
*288 The parties are in agreement with the facts found by the court and additional facts presented in their briefs.
At the time of trial, the plaintiff was an inmate in the Connecticut Correctional Institution at Somers. The classification committee at the institution, which is chaired by an assistant warden, is the administrative body which assigns jobs to inmates. These job assignments are usually mutually agreed upon by the inmate and the committee.
The inmates' jobs are classified as either "five day" jobs or "seven day" jobs. There are some job assignments in the kitchen at Somers, such as cooking and working on the food serving lines, which must be filled every day in order to provide food for the inmates and staff. These jobs are classified as seven day jobs. There are other inmate job assignments, also in the kitchen, which entail cleaning tables, mopping and scrubbing. These jobs, which need be performed only five days per week, are classified as five day jobs.
In order to be eligible for the earned time credit under § 18-98a, the classification committee requires inmates who are employed in seven day jobs to live in certain designated areas within the institution. The plaintiff, because he did not wish to live in one of the specific areas designated by the committee, was assigned by mutual consent to a five day job in kitchen maintenance.
During the course of the petitioner's employment in a five day job he was allowed to work seven consecutive days for a period of fourteen weeks. He was paid for the extra two days per week for the *289 entire period. The defendant's brief states that the petitioner was allowed but not required to work overtime during this period because there was a shortage of inmate workers. Throughout this period, the petitioner knew that unless he accepted a seven day job, which required him to live in one of the designated areas, he would not be eligible under classification committee rules for the statutory credit. Several months later, the petitioner appeared before the classification committee and was reassigned to a seven day job.[2]
Although the petition for a writ of habeas corpus mentions the equal protection clause of the fourteenth amendment to the United States constitution, the petitioner has not pursued this claim on appeal. Nor does he claim that § 18-98a is unconstitutional. There is also no claim that the defendant's actions were inequitable because the petitioner was unaware of the rules. The petitioner does not dispute that before he agreed to perform his five day job for seven days each week, he was informed that he would receive extra compensation but no statutory credit. The sole issue to be decided on appeal is whether the discretion bestowed upon the commissioner of correction by § 18-98a empowers the commissioner to classify the inmates' job assignments such that only those employed in so-called "seven day" jobs are eligible for credit against their sentences in accordance with the statute.
*290 In interpreting a statute, "common sense must be used and courts must assume that a reasonable and rational result was intended." Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). The discretion accorded the corrections commissioner under § 18-98a is general in nature. There is no express limitation as to the manner in which it may be exercised. The term "discretion" means "`a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.'" Hammerberg v. Leinert, 132 Conn. 596, 604, 46 A.2d 420 (1946).
The defendant asserts that the job classifications and accompanying limitations on housing choices were created to minimize the disturbance to other inmates which necessarily ensued when inmates assigned to food preparation and serving duties were required to report to or return from work at odd hours of the day and night every day of the week. Since the inmates employed in seven day jobs had similar schedules, seven days per week and twenty-four hours per day, and similar interests and responsibilities, the defendant decided to house them separately.
This is a reasonable and rational exercise of the defendant's discretion. The fact that the petitioner worked seven days per week for a fourteen week period without living in one of the designated areas is not in itself sufficient to show an abuse of discretion by the defendant in classifying the kitchen jobs and requiring those inmates who accepted seven day positions to live in those units. The petitioner has not shown that housing in the designated areas was unavailable during the fourteen week *291 period, or that he would have accepted such housing if it were available. The record indicates that he would not. To hold that the defendant's job classification and housing limitation rules, promulgated to minimize the disruption of inmates in the performance of their work assignments, is an abuse of discretion under §18-98a would be to subvert the intent of the legislature which endowed the commissioner with a general discretion, and to ignore the complexity and difficulty of the problems which prison administration entails. It is the responsibility of prison administrators to maintain internal order and discipline, and to rehabilitate, to the extent possible, the inmates in their custody. Procunier v. Martinez, 416 U.S. 396, 404, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). "Because the realities of running a penal institution are complex and difficult, [the United States Supreme Court has] recognized the wide-ranging deference to be accorded the decisions of prison administrators." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 126, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977); see also Bell v. Wolfish, 441 U.S. 520, 544-45, 562, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). The commissioner of correction, provided he does not act illegally, arbitrarily or in abuse of his discretion, need not deduct time to be served from a prisoner's sentence under § 18-98a if that prisoner fails to observe the rules incident to the requisite job assignment.
There is error, the judgment is set aside and the case is remanded with direction to enter judgment for the defendant.
In this opinion the other judges concurred.
NOTES
[1] General Statutes § 18-98a provides: "DEDUCTION OF TIME FOR PERIODS OF EMPLOYMENT. Each person committed to the custody of the commissioner of correction who is employed within the institution to which he was sentenced ... for a period of seven consecutive days, except for temporary interruption of such period as excused by the commissioner for valid reasons, may have one day deducted from his sentence for such period, in addition to any other earned time, at the discretion of the commissioner of correction."
[2] The trial court's memorandum of decision states that prison regulations required those employed in seven day jobs first to live in a dormitory, then later to move to individual cells. Since the petitioner preferred to live in an individual cell, he accepted a five day job. According to the defendant's statement of facts, when the petitioner was reassigned to a seven day job, he was also permitted to remain in an individual cell.
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623 F. Supp. 1217 (1985)
UNITED STATES of America, Plaintiff,
v.
Robert William Dion FRISBEE, Defendant.
No. CR-85-0762 EFL.
United States District Court, N.D. California.
December 20, 1985.
*1218 Robert L. Dondero, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.
V. Roy Lefcourt, San Francisco, Cal., for defendant.
MEMORANDUM OPINION
LYNCH, District Judge.
I. Introduction
On August 19, 1985, defendant Robert Frisbee was indicted for first degree murder in violation of 18 U.S.C.A. section 1111 (West Supp.1985). The murder allegedly occurred on a commercial cruise ship that was sailing to the port of San Francisco in Pacific waters off the coast of California. The deceased was an 80 year old woman who apparently died from multiple traumas to the head. The defendant had been traveling with the deceased on the cruise ship, sharing a suite with her.
After the cruise ship docked in San Francisco, authorities arrested the defendant. In the course of an interview, the defendant reportedly indicated that, to the best of his knowledge, he was the only person in the room other than the victim at the time the murder allegedly occurred. United States v. Frisbee, No. CR-85-0762 EFL (N.D.Cal.1985) (Detention Order). The defendant also allegedly stated to the investigating authorities that he "did believe he committed the crime, in view of the fact that no one else was in the room at the time." Id. (quoting an affidavit of Jan K. Smith, Special Agent for the Federal Bureau of Investigation). According to psychiatric reports submitted to the Court by the defendant's counsel, the defendant has, however, never had any recollection of the actual events surrounding the death of the deceased. The reports also indicate that the defendant has suffered from periodic blackouts or seizures and from amnesia, all caused by serious alcohol abuse over many years.
*1219 Pursuant to rule 12.2(b) of the Federal Rules of Criminal Procedure, the defendant has given notice to the government that he "intends to introduce expert testimony relating to a mental disease or defect or ... other mental condition of the defendant bearing upon the issue of his guilt ...." Fed.R.Crim.P. 12.2(b). More specifically, the defendant has indicated that he will offer expert testimony supporting his contention that due to some combination of pathological intoxication, organic brain damage, and an alcoholic blackout or seizure, he did not possess the requisite specific intent during the relevant time period to have committed first degree murder.[1]
Currently before the Court is a motion brought by the government in opposition to the admission of psychiatric testimony by the defendant to negate the existence of specific intent. The government contends that the recently enacted section 20 of Title 18 of the United States Code, Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 402, 98 Stat. 1837, 2057, prohibits the admission of psychiatric testimony to negate the existence of an element of the crime unless such testimony is admitted in conjunction with an insanity defense.
While the government bears the burden of proving beyond a reasonable doubt all elements of the crime charged, In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970), section 20 makes the insanity defense an affirmative defense that the defendant must prove by clear and convincing evidence. 18 U.S.C.A. § 20(b) (West Supp.1985). Consequently, the government's argument, if successful, would prohibit the defendant from using psychiatric testimony to negate specific intent, an element the government must prove beyond a reasonable doubt, but would allow the admission of such evidence to prove insanity, an affirmative defense that the defendant must prove by clear and convincing evidence. For the reasons stated below, the Court rejects the government's argument. The Court will allow expert testimony on the issue of specific intent but will limit the scope and use of such evidence in the manner described in the final section of this Opinion.
II. Admissibility Prior to Section 20 of Expert Testimony on the Issue of Specific Intent
It is quite clear that, prior to the enactment of section 20, the Ninth Circuit allowed the admission of expert testimony to negate the existence of specific intent. In United States v. Erskine, 588 F.2d 721 (9th Cir.1978), the court held that a "trial court has wide latitude in admitting or excluding psychiatric testimony on the question of a defendant's incapacity to form specific intent ..." and that the "defendant was entitled to introduce competent evidence pertaining to the defense of lack of specific intent." Id. at 722-23.
While there seems to be little dispute between the defendant and the government concerning the state of the law in the Ninth Circuit prior to the enactment of section 20, the parties disagree over the effect of section 20. It is this dispute which the Court must now resolve.
III. Effect of Section 20
Section 20 provides as follows:
(a) AFFIRMATIVE DEFENSE. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. *1220 Mental disease or defect does not otherwise constitute a defense.
(b) BURDEN OF PROOF. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
18 U.S.C.A. § 20 (West Supp.1985).
The government argues that the language of section 20(a) providing that "[m]ental disease or defect does not otherwise constitute a defense" is intended to exclude all psychiatric testimony not admitted in conjunction with an insanity defense. The Court disagrees. As discussed below, the Court believes that section 20 is not intended to limit the admissibility of evidence negating the existence of specific intent; rather, the Court finds that the section is intended to narrowly restrict situations in which mental disease or defect will excuse an otherwise guilty defendant. In short, the Court finds that section 20 represents an attempt by Congress to define the circumstances in which an otherwise culpable defendant will be excused for his or her conduct because of mental disease or defect, and that the section has no effect on the admissibility of evidence offered by a defendant to negate the existence of specific intent and thereby to show his or her innocence. This conclusion is supported by the legislative history of section 20 and the overall statutory scheme of which section 20 is a part.
A. Legislative Intent.
Section 20 makes the defense of insanity an affirmative defense. The term "affirmative defense" has generally referred to defenses that must be affirmatively raised by the defendant and that are based on justifications or excuses for conduct that is otherwise criminal. See W. LaFave & A. Scott, Criminal Law 152 (1972). Consequently, evidence used to negate the existence of an element of the crime would not traditionally be considered part of an affirmative defense because the evidence is used to show innocence, as opposed to an excuse or justification for an otherwise criminal act.
The legislative history of section 20 indicates that when Congress used the term "affirmative defense" in section 20, it intended that the term be given its traditional meaning and, consequently, did not intend on addressing the question of the admissibility of expert testimony on the issue of guilt or innocence. In discussing the language of section 20 that the government relies on in making this motion, Senate Report 225 states as follows:
The Committee also included language in section 20 explicitly providing that mental disease or defect other than that which renders the defendant unable to appreciate the nature and quality or wrongfulness of his acts does not constitute a defense. This is intended to insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant had a "diminished responsibility" or some similarly asserted state of mind which would serve to excuse the offense and open the door, once again, to needlessly confusing psychiatric testimony.
S.Rep. No. 225, 98th Cong., 2d Sess. 229, reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3411 (emphasis added). The Report's discussion of an affirmative defense as involving an "excuse" for an "offense" indicates that section 20 was written only to delimit when mental disease or defect will be allowed to excuse a criminal offense.
Furthermore, other language contained in the same Senate Report indicates that Congress clearly understood that section 20 would not have the effect of making expert testimony on the issue of specific intent inadmissible unless offered in conjunction with an insanity defense. In describing why section 20 uses the term "severe," the paragraph of the Report directly following the language quoted above states:
The provision that the mental disease or defect must be "severe" was added to section 20 as a Committee amendment. As introduced in S. 829, the provision referred only to a "mental disease or *1221 defect." The concept of severity was added to emphasize that nonpsychotic behavior disorders or neuroses such as an "inadequate personality," "immature personality," or a pattern of "antisocial tendencies" do not constitute the defense. The Committee also intends that, as has been held under present case law interpretation, the voluntary use of alcohol or drugs, even if they render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity or any other species of legally valid affirmative defense. [Footnote.]
Id.
In the footnote to the final sentence of the above-quoted paragraph, the Report acknowledges that "[o]f course, intoxication may negate a state of mind required for the commission of the offense charged." Id. at 229 n. 30, 1984 U.S.Code Cong. & Ad. News at p. 3411 n. 30 (citations omitted). Thus, the paragraph, as footnoted, indicates that while Congress recognized that section 20 would prohibit evidence of voluntary intoxication from being used to excuse admittedly criminal behavior, Congress also recognized that the section would not necessarily bar the admission of such evidence to negate the existence of an element of the crime charged. Consequently, the paragraph demonstrates that Congress intended that section 20 restrict the use of testimony regarding mental disease or defect only in conjunction with an affirmative defense, not the use of such testimony to negate the existence of an element of the crime charged.
The government argues that the legislative history supports its position. In support of this contention, the government cites language in Senate Report 225 stating that section 20 was intended to "insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant had a `diminished responsibility' ...." S.Rep. No. 225, 98th Cong., 2d Sess. 229, reprinted in 1984 U.S.Code Cong. & Ad.News 3404, 3411. The government argues that the use of psychiatric testimony to negate the existence of specific intent has been commonly referred to as a diminished capacity defense and, therefore, that the Senate Report clearly shows that Congress intended section 20 to exclude such testimony in the absence of an insanity defense.
The government's argument ignores the confusion surrounding the meaning of the terms diminished capacity and diminished responsibility. Courts and commentators have often confused two distinct concepts by referring to both as the defense of diminished capacity or diminished responsibility. Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim.L. & Crim. 1, 7-9 (1984). The terms have been used to refer both to using evidence of mental disease or defect to negate the existence of specific intent and to making a defense based on the argument that, as a result of a mental disease or defect, the accused, though guilty, is less responsible and should therefore be convicted of a lesser crime. Id.
Considered in context, it is clear that the Senate Report attached the latter meaning to the term "diminished responsibility."[2]*1222 As shown earlier, the Report's entire discussion surrounding the use of the term relates to limiting the definition of what may be used to excuse criminal behavior. The Report simply does not speak in terms of what may be admitted to negate specific intent.[3]
In summary, the Court finds that the legislative history shows that Congress did not intend section 20 to eliminate the use of expert testimony to negate specific intent. Section 20 deals with when criminal behavior will be excused, not with what types of evidence is admissible to show one's innocence. The clearest indication of that fact is the Senate Report's recognition that section 20 does not affect the admissibility of evidence of voluntary intoxication on the issue of specific intent. That recognition leads this Court to conclude that Congress did not intend that section 20 change the law regarding what type of evidence may be admitted on the issue of specific intent.
B. Statutory Scheme.
The statutory scheme of which section 20 is a part also supports the Court's interpretation of that section. Both the federal rule of evidence governing the admissibility of expert testimony on a defendant's mental state or condition, Fed.R.Evid. 704(b), and the federal rule of criminal procedure requiring notice of a defendant's intent to use expert testimony on the defendant's mental condition as it pertains to the issue of guilt, Fed.R.Crim.P. 12.2(b), are inconsistent with the government's argument that section 20 should be read as barring expert testimony on the issue of specific intent.
Rule 704(b) of the Federal Rules of Evidence, which was part of the same legislation as that which enacted section 20, Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, §§ 402, 406, 98 Stat. 1837, 2057, 2067, provides as follows:
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
Fed.R.Evid. 704(b).
Rule 704(b) is important in interpreting section 20 for two reasons. First, the rule clearly shows that Congress appreciated the distinction between evidence negating specific intent and evidence supporting a finding of insanity. The rule itself maintains that distinction by prohibiting an expert witness testifying with respect to either the existence of a mental element of a crime or a defense based on a mental condition from stating an opinion on the ultimate issue. Second, implicit in the rule's exclusion of ultimate issue testimony is Congress' acknowledgement that expert testimony may otherwise be admissible either on the issue of specific intent or on the *1223 issue of insanity. The language of rule 704(b) and its legislative history clearly show that Congress recognized that expert testimony negating the existence of specific intent may be offered in cases not involving an insanity defense. Senate Report 225 contains the following discussion highlighting this fact:
[T]he rationale for precluding ultimate opinion psychiatric testimony extends beyond the insanity defense to any ultimate mental state of the defendant that is relevant to the legal conclusion sought to be proven. The Committee has fashioned its Rule 704 provision to reach all such "ultimate" issues, e.g., premeditation in a homicide case, or lack of predisposition in entrapment.
S.Rep. No. 225, 98th Cong., 2d Sess. 229, reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3413.
Given that rule 704(b) was a part of the legislation in which section 20 was enacted, it seems clear that section 20 should not be interpreted as excluding expert testimony on the issue of specific intent.
Rule 12.2 of the Federal Rules of Criminal Procedure is also instructive. Paragraph (a) of rule 12.2 requires a defendant to give notice prior to trial of his or her intent to make an insanity defense, and paragraph (b) requires pretrial notice of a defendant's intent to offer "expert testimony relating to a mental disease or defect or any other mental condition bearing on the issue of his guilt ...." If the government's interpretation of section 20 is correct, it would seem that rule 12.2(b) is quite unnecessary. Nevertheless, Congress has not repealed the rule despite the fact that it has made other modifications to the rule since the enactment of section 20.[4] Although this omission is not overwhelming evidence of congressional intent, it does seem inconsistent with the government's argument in this case.
In summary, the Court holds that section 20 was not intended to regulate the admissibility of expert testimony concerning the existence of a mental element of a crime. The Court believes that the sole purpose of section 20 was to narrowly define the circumstances in which mental disease or defect will excuse otherwise criminal conduct and was not intended to impede an accused's ability to show his or her innocence. To the extent that Congress desired to limit a defendant's ability to negate the existence of specific intent, it did so through rule 704(b) of the Federal Rules of Evidence, which excludes ultimate issue evidence on a defendant's state of mind. Therefore, the Court holds that the Ninth Circuit's rule allowing expert testimony negating the existence of specific intent is unaltered by the enactment of section 20.[5]
IV. Admissibility of Expert Testimony
The defendant has indicated that he intends to submit psychiatric testimony in support of his contention that at the time the murder allegedly occurred he did not have the specific intent required for a first degree murder conviction. The defendant's experts will apparently testify that, due to some combination of pathological intoxication, organic brain damage, and an alcoholic blackout or seizure, the defendant could not have possessed the requisite specific intent during the relevant time period. For the reasons stated above, the Court will allow the testimony. Nevertheless, the nature and use of the testimony shall be restricted.
Pursuant to rule 704(b) of the Federal Rules of Evidence, the defendant's experts *1224 will not be allowed to state an opinion or inference as to whether the defendant did or did not form a specific intent to kill at the time the murder allegedly occurred. The legislative history of rule 704(b) states that the rule is intended to limit experts to "presenting and explaining their diagnoses, such as whether the defendant had a severe mental disease or defect and what the characteristics of such a disease or defect, if any, may have been." S.Rep. No. 225, 98th Cong., 2d Sess. 230, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3412. Thus, the Court will only allow the experts to testify concerning their diagnoses, the facts upon which those diagnoses are based, and the characteristics of any mental diseases or defects the experts believe the defendant possessed during the relevant time period. No testimony directly or indirectly opining on the issue of specific intent will be allowed.
Furthermore, the Court shall instruct the jury that the expert testimony admitted on the issue of specific intent shall only be considered on that issue. The Court will not allow the jury to consider the testimony in connection with the issue of whether the defendant may have possessed the necessary intent to commit lesser offenses requiring only general intent.[6] The Ninth Circuit has clearly stated that testimony concerning a defendant's ability to form specific intent should not be admitted in cases involving general intent crimes. United States v. Erskine, 588 F.2d 721, 723 (9th Cir.1978). Moreover, because the defendant is not making an insanity defense, the Court will not allow psychiatric evidence of mental disease or defect to be the basis for the jury's convicting the defendant of a lesser crime if the jury finds that all the elements necessary for a conviction of first degree murder have been proven by the government. To do otherwise would be a violation of section 20.
Finally, the Court obviously reserves the right to exclude any expert testimony that is, for other reasons, inadmissible. For example, expert testimony that is unduly confusing, misleading, or repetitive or that will not be of assistance to the jury in determining the issue of a specific intent will be excluded. See Fed.R.Evid. 403, 702. While the Ninth Circuit allows the admission of expert testimony on the issue of specific intent, the admission of such testimony is not "automatic." United States v. Byers, 730 F.2d 568, 570 (9th Cir.), cert. denied, ___ U.S. ___, 105 S. Ct. 333, 83 L. Ed. 2d 270 (1984).
V. Conclusion
Defendant may offer expert testimony concerning whether he could have possessed the requisite mental state to have committed first degree murder at the time the murder allegedly occurred. However, this testimony may not include an opinion or inference on the ultimate issue of specific intent. Moreover, the Court will instruct the jury that the testimony may only be considered on the issue of whether the defendant possessed the specific intent necessary for a first degree murder conviction.
IT IS SO ORDERED.
NOTES
[1] United States v. Frisbee, No. CR-85-0762 EFL (N.D.Cal.1985) (Defendant's Offer of Proof). The defendant's counsel has also indicated that he intends to submit evidence showing that the defendant is "an extremely passive-dependent, non-aggressive individual for whom an act of deliberate violence would be totally out of character." Id. Such evidence is generally admissible under rule 404(a)(1) of the Federal Rules of Evidence, Fed.R.Evid. 404(a)(1), if the evidence is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See Fed.R.Evid. 401, 402, 403.
[2] In fact, "diminished responsibility," the term used in the Senate Report, has generally referred to a defense based on a showing that the accused suffered from an abnormality of mind that "substantially impaired his mental responsibility." See Cooper, Diminished Responsibility "Borderline Insanity" Direction, 49 J.Crim.L. 118 (1985). "Diminished capacity," as opposed to "diminished responsibility," is the term most often used by American courts in referring to defenses aimed at negating specific intent, although this term has also been used in referring to a defense offering evidence of mental disease or defect to show mitigating circumstances. H. Fingarette & A. Hasse, Mental Disabilities and Criminal Responsibility, 117-18 (1979). Moreover, neither "diminished capacity" nor "diminished responsibility" are terms that accurately describe a defense aimed at negating intent. See United States v. Demma, 523 F.2d 981, 986 n. 14 (9th Cir.1975) (en banc). One commentator has described the difference between a diminished capacity defense and a defense negating intent as follows:
[T]he mens rea variant of diminished capacity is not a separate defense that deserves to be called "diminished capacity" or any other name connoting that it is some sort of special, affirmative defense.[footnote] The defendant is simply introducing evidence, in this case evidence of mental abnormality, to make the following claim: "I did not commit the crime charged because I did not possess the requisite mens rea." This is not an affirmative defense whereby the defendant admits or has proved against him the elements of the crime charged, but then raises a claim of justification or excuse. Further, a defendant claiming no mens rea because of mental disorder is not asserting some lesser form of legal insanity, that is, he is not claiming that he is partially or less responsible for the crime charged. Rather, the defendant is straightforwardly denying the prosecution's prima facie case by attempting to cast doubt on the prosecution's claim that a requisite mental element was present at the time of the offense. He is claiming that he is not guilty of that crime at all, although he may be guilty of a lesser crime if all the elements of the latter are proven.
Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim. L. & Crim. 1, 6 (1984).
[3] The California legislature's use of the term "diminished responsibility" also supports the conclusion that the term does not necessarily relate to specific intent. A recently enacted California statute explicitly prohibits diminished capacity and diminished responsibility as defenses, Cal.Penal Code § 28(b) (West Supp. 1985), but nevertheless allows "[e]vidence of mental disease, mental defect or mental disorder to negate the existence of mens rea." Id. § 28(a).
[4] Slight modifications to rule 12.2(b) were made by the Congress in legislation passed on October 30, 1984. Pub.L. No. 98-596, § 11, 98 Stat. 3134, 3138 (1984). As noted earlier, section 20 was enacted on October 12, 1984. Pub.L. No. 98-473, § 402, 98 Stat. 1837, 2057 (1984).
[5] The government cites a number of well-reasoned opinions in which other jurisdictions have upheld a blanket prohibition on the admissibility of psychiatric testimony on the issue of specific intent. See, e.g., Muench v. Israel, 715 F.2d 1124, 1143 (7th Cir.1983), cert. denied, ___ U.S. ___, 104 S. Ct. 2682, 81 L. Ed. 2d 878 (1984). As explained earlier, the Ninth Circuit has, however, not adopted such a blank probition, chosing instead to grant trial courts broad discretion in determining the admissibility of such evidence given the circumstances of each case. This Court is required to apply the current law of the Ninth Circuit.
[6] Under the law of the Ninth Circuit, neither second degree murder nor voluntary manslaughter is a specific intent crime. Kane v. United States, 399 F.2d 730, 736 (9th Cir.1968), cert. denied, 393 U.S. 1057, 89 S. Ct. 698, 21 L. Ed. 2d 699 (1969); United States v. Lopez, 575 F.2d 681, 684 (9th Cir.1978).
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623 F. Supp. 33 (1985)
James B. CLARK, et al., Plaintiffs,
v.
MARENGO COUNTY, et al., Defendants.
UNITED STATES of America, Plaintiff,
v.
MARENGO COUNTY COMMISSION, et al., Defendants.
Civ. A. Nos. 77-445-H, 78-474-H.
United States District Court, S.D. Alabama, N.D.
September 5, 1985.
*34 J.L. Chestnut, Jr., Selma, Ala., and Larry T. Menefee, Mobile, Ala., for individual plaintiffs.
Cartledge W. Blackwell, Jr., Selma, Ala., for Marengo County, et al.
J. Gerald Hebert, Christopher G. Lehmann, Dept. of Justice, Civil Rights Div., Washington, D.C., for United States.
Hugh A. Lloyd, Demopolis, Ala., for Marengo County Bd. of Educ., et al.
W.W. Dinning, Demopolis, Ala., for Joseph C. Camp, etc.
Edward S. Allen, Birmingham, Ala., for J. Marks Abernathy, etc.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
HAND, Chief Judge.
This cause came on before the Court in March, 1985 on a post-remand hearing. The ordered purpose of the hearing was to determine whether conditions in Marengo County had sufficiently changed since 1978 to affect the Court of Appeals' finding of discriminatory results as they related to election procedures for the Marengo County Commission and the Marengo County School Board. United States v. Marengo County Commission, 731 F.2d 1546, 1574 (11th Cir.1984). Based upon the evidence produced at the hearing, briefs and arguments of counsel, the Court determines that pursuant to its directions no significant changes have occurred since 1978 that affect the Eleventh Circuit Court of Appeals' finding of a Section 2 violation.
In making this determination the Court notes that it does so in order to comply with the mandate. This Court's original findings were contrary to those of the Eleventh Circuit Court of Appeals and were reversed, despite this Court's opportunity to view the witnesses, judge their credibility, and draw rational and logical inferences from that testimony. This Court still adheres to its previous findings, nevertheless, given the decision and mandate this Court's function has in its essentials been reduced to the merely ministerial. Under the law of this case, there is nothing left to do but ratify the Eleventh Circuit's decision.
Accordingly, the Court concludes that the plaintiffs are entitled to injunctive relief, that Marengo County's at-large method of electing members to the County Commission and the School Board must be abolished, and that a plan for electing members to those boards based upon single member districts must be formulated, established and implemented.
*35 In this litigation, the United States and private plaintiffs challenged the at-large method of electing the Marengo County Commission and the Marengo County Board of Education as violative of Section 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973, and the Fourteenth and Fifteenth Amendments. The United States Court of Appeals for the Eleventh Circuit, United States v. Marengo County Commission, 731 F.2d 1546 (1984), directed this Court to supplement the record with any evidence that might tend to effect the appellate court's findings of a violation of Section 2 of the Voting Rights Act as of 1978.
This cause was originally filed by the United States on August 25, 1978. The case was consolidated with a private class action filed in 1977 by black voters. A four-day trial was held on October 23-25, 1978 and January 4, 1979. On April 23, 1979, this Court issued an opinion and entered judgment for the defendants. This Court determined that while intentional discrimination could be inferred from an aggregate of factors articulated in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1978 en banc), aff'd on other grounds sub nom East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S. Ct. 1083, 47 L. Ed. 2d 296 (1976) per curiam, such an inference was not warranted here. The Court further concluded that plaintiffs had not proved that the at-large system was enacted or being maintained with a racially discriminatory purpose, a finding to which this Court still steadfastly adheres.
Thereafter, the United States appealed the decision of this Court. While the appeal was pending, the United States Supreme Court decided City of Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980), in which a plurality of the Court concluded that a showing of purposeful discrimination is a necessary ingredient of a violation of the Fifteenth Amendment and a majority of the Court held that the factors used in the Zimmer analysis were insufficient to show a violation of the Constitution. Thereafter, the court of appeals in this case, upon motion of the United States, vacated this Court's judgment and remanded for further proceedings "including the presentation of such additional evidence as is appropriate, in light of the decision of the Supreme Court in City of Mobile v. Bolden."
While this case was pending on remand, the Fifth Circuit decided Lodge v. Buxton, 639 F.2d 1358 (1981), aff'd sub nom Rogers v. Lodge, 458 U.S. 613, 102 S. Ct. 3272, 73 L. Ed. 2d 1012 (1982), holding that the United States Supreme Court's decision in Mobile did not require direct evidence of discriminatory intent, but stating, "an essential element of a `prima facie' case of [unconstitutional vote dilution] is proof of unresponsiveness by the public body in question to the group claiming injury." 639 F.2d at 1375. Following the decision in Lodge v. Buxton, this Court, on July 30, 1981, again ordered judgment for defendants on the grounds that this Court had previously concluded that plaintiffs had failed to prove defendants' unresponsiveness to the particularized needs and interests of Marengo County's black citizens.
The United States again appealed and the Eleventh Circuit Court of Appeals granted the Government's motion to hold the appeal in abeyance pending the United States Supreme Court's review of Lodge v. Buxton. One year later, on July 1, 1982, the United States Supreme Court affirmed the results in Lodge, but contrary to the court of appeals' decision in Lodge, the Supreme Court found that unresponsiveness is not an essential element of the claim of unconstitutional dilution. Rodgers v. Lodge, supra, 458 U.S. at 625 n. 9, 102 S.Ct. at 3280 n. 9.
In addition, two days prior to the Supreme Court's decision in Rodgers v. Lodge, Congress amended Section 2 of the Voting Rights Act. In amending Section 2 "Congress redefined the scope of Section 2 of the Act to forbid not only those voting practices directly prohibited by the Fifteenth Amendment, but also any practice imposed or applied ... in a manner which results in a denial or abridgement of the *36 right ... to vote on account of race ...." United States v. Marengo County, supra, 731 F.2d at 1553.
On May 14, 1984, the court of appeals decided this case, applying amended Section 2 of the Voting Rights Act and concluded that there was a violation of Section 2. United States v. Marengo County Commission, supra, at 1574. The Court of Appeals held that Marengo County's atlarge election system had the proscribed racially discriminatory "result" as of the time of the 1978 trial. 731 F.2d at 1574-1575. The Court of Appeals also concluded that in view of the convoluted procedural history of the case, as well as the five years that had elapsed since trial, the case should be remanded to determine whether the current conditions in Marengo County had changed since 1978. The court of appeals therefore remanded the case to this Court "to allow the parties to update the record and to supplement the record with evidence that might tend to affect our finding of discriminatory results." 731 F.2d at 1574. That Court further noted that "the defendants bear the burden of establishing that circumstances have changed sufficiently to make our findings of discriminatory results in 1978 inapplicable in 1984." 731 F.2d at 1575.[1]
Evidentiary hearings were held in August 1984 for the purpose of determining "whether or not to grant the United States' motion for a preliminary injunction enjoining the defendants from holding at-large elections [in September 1984] for positions on the Marengo County Commission and the Marengo County Board of School Commissioners", which was granted and in March 1985 on the merits of the remand order. On the basis of the evidence offered at these hearings, the Court now concludes there is no particular change of circumstance from that prevailing in 1978 except in regard to the School Board, but since value assessments by this Court are of no weight, it would be useless to catalog these.
CONCLUSIONS OF LAW
1. Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, provides as follows:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
2. The Eleventh Circuit Court of Appeals determined that "the record shows a clear violation of the results test adopted by Congress in Section 2 of the Voting Rights Act". 731 F.2d at 1574. That determination was based on the conditions that prevailed in Marengo County in 1978 when this case was originally tried. Under the court of appeals' decision, "the defendants bear the burden of establishing that circumstances have changed sufficiently to make [the] finding of discriminatory results in 1978 inapplicable in 1984". 731 F.2d at 1575. In accordance with that mandate, this Court has evaluated the political opportunities *37 for Marengo County's black citizens as of today and renders these conclusions of law.
3. In determining whether black voters in Marengo County "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice," 42 U.S.C. § 1973, the Court is required to consider and has considered the "totality of circumstances" in Marengo County. The Court has given attention to the following issues: (1) racial bloc voting; (2) the appointment of qualified black persons to work at the polls on election day; and (3) socioeconomic conditions such as education, employment, housing and health, and the impact of these effects on the current political opportunities of minority voters. In compliance with the mandate, this Court did not conduct "a retrial of any issues already tried and reviewed by [the court of appeals]." 731 F.2d at 1574.
4. In view of these conclusions, the Court holds that the defendants have failed to show that the "circumstances have changed" since 1978,[2] therefore the at-large method of electing the Marengo County Commission and the Marengo County School Board violates Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. See United States v. Marengo County, supra.
5. Because the at-large election schemes have been found violative of section 2, it is unnecessary for the Court to reach the constitutional claims presented.[3] Indeed, that inquiry appears to be precluded by the mandate of the Eleventh Circuit when it stated, "[t]he purpose of the remand is to allow the parties to update the record and to supplement the record with evidence that might tend to effect [the] finding of discriminatory results." United States v. Marengo County Commission, 731 F.2d at 1574 (emphasis added).
ORDER
1. The defendants shall immediately prepare fair election plans for the County Commission and the County School Board and file those plans with the Court. The plans shall provide for the election of members of the County Commission and School Board by single member districts. These filings shall be made no later than 45 days from the entry of this decision. Simultaneous with defendants' filings in this Court, defendants shall seek preclearance of said plans under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. See McDaniel v. Sanchez, 452 U.S. 130, 101 S. Ct. 2224, 68 L. Ed. 2d 724 (1981). Once the Section 5 process has been completed, this Court will then undertake its review of said plans.
2. As previously noted, the defendants were enjoined in 1984 by this Court from holding scheduled elections under the at-large system, terms. The defendant shall also prepare a schedule for holding elections at the earliest possible date under the proposed plans and shall submit the proposed election schedule for Section 5 preclearance at the same time said plans are submitted.
The Court retains jurisdiction of this matter for purposes of issuing additional orders as may be appropriate.
NOTES
[1] Although this Court has considerable concerns about the constitutionality of placing the burden of proof on the defendants, this Court must adhere to the mandate of the Eleventh Circuit.
[2] As previously noted, the Court has doubts as to the constitutional propriety of placing the burden of proof and persuasion on the defendants. As repeatedly noted, however, that procedure was mandated by the Eleventh Circuit's opinion in United States v. Marengo County Commission, supra.
[3] Although the record contains evidence from which to find a discriminatory result under the totality of circumstances test, the Court would be hard pressed to find intentional discrimination in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution.
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615 F. Supp. 591 (1985)
The UNITED STATES, Plaintiff,
v.
PRIORITY PRODUCTS, INC., Walter L. Huss and Rosalie E. Huss, Defendants.
Court No. 84-9-01311.
United States Court of International Trade.
August 5, 1985.
Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, and Platte B. Moring, III, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.
Ronald Brent Boutwell for defendants.
Opinion and Order
RESTANI, Judge:
This matter is before the court on defendants' Rule 12(c) motion for judgment on the pleadings and defendants' Rule 56(b) motion for summary judgment. For the reasons that follow, both motions are denied.
On February 26, 1985, the United States filed the amended complaint at issue against Priority Products, Inc., Walter L. Huss and Rosalie E. Huss. The United States is seeking to recover penalties stemming from the alleged fraudulent or negligent importation of bark tea into Portland, Oregon, after the tea was refused entry in San Francisco, California. Defendants' motions request first, that Walter L. Huss and Rosalie E. Huss (the individual defendants) be dismissed from this action because they were not individually named as the subjects of the penalty notices and second, that the amount of the damages be limited to the administratively determined mitigated amount.
Priority Products was incorporated on March 4, 1982, with Walter L. Huss as fifty percent shareholder and chairman of the board, Jack Meligan as fifty percent shareholder and president, and Rosalie E. Huss as secretary and agent. The corporation had no other directors, officers, or employees. *592 On November 1, 1982, Mr. and Mrs. Huss became the sole shareholders of Priority Products and Mr. Meligan severed his relationship with the corporation.
On October 1, 1982, the United States Customs Service (Customs) sent a prepenalty notice to "Priority Products Corp." indicating a potential claim for a monetary penalty stemming from the September 3, 1982, importation of bark tea. On October 28, 1982, Walter L. Huss and Rosalie E. Huss attended a meeting with the district director regarding the prepenalty notice. On the same day, Walter L. Huss sent a letter acknowledging and summarizing the meeting which was signed "Walter L. Huss, President." On April 19, 1983, a summons to appear and produce records was issued to "Walter L. Huss." Walter L. Huss responded by appearing in person on May 4, 1983, and by submitting a statement signed by "Walter Huss." On May 17, 1983, Customs issued a penalty notice to "Priority Products" and mailed a cover letter to "Walter L. Huss, President, Priority Products, Inc." On August 9, 1983, Walter L. Huss filed a petition for relief. Customs responded by letter to "Priority Products, attention Walter L. Huss" on January 30, 1984, and notified him of the referral of the matter to Customs headquarters for review and determination.
On April 10, 1984, Customs further advised Walter Huss that the penalty amount had been mitigated, that payment must be made within 60 days, and that failure to pay the mitigated penalty would result in referral of the case to the Department of Justice for institution of judicial proceedings. The mitigated penalties were not paid, but on June 11, 1984, Walter L. Huss filed a "criminal complaint and affidavit of information."
Defendants argue that Customs must follow the prepenalty notice and penalty claim procedures specified in 19 U.S.C. § 1592 (1982) which result in the establishment of a penalty claim, in order to commence a lawsuit. Defendants contend that Customs followed § 1592 procedures and established an existing claim against the corporate defendant, but that Customs did not establish an existing claim against the individual defendants. Defendants assert that because Customs did not follow prescribed statutory notice procedures, the individual defendants' due process rights were violated.[1]
Section 1592 provides penalties for fraudulent, grossly negligent and negligent acts committed during the importation of merchandise into the United States, procedures for imposing such penalties, and de novo review of such penalty claims in the Court of International Trade. Corresponding regulations are found at 19 C.F.R. §§ 162.31, 162.77, 162.78, 162.79, and 171.32. There is nothing in the statute or regulations which expressly provides that suit is precluded against persons not notified and formally named as the subject of the claim during the penalty investigation. Whether the statute implicitly bestows such protections need not be decided given the facts of this case. Nothing here deprived the individual defendants of any statutory or regulatory rights to administrative review. The individual defendants took advantage of their rights by responding in person and by letter to the prepenalty notice and the summons and by petitioning for mitigation of the assessed penalties.[2]
Assuming arguendo that the statute and regulations provide for formal notice to a party as a prerequisite to suit, "cases recognize that even if the agency has not given notice in the statutorily prescribed fashion, actual notice will render the error harmless." Small Refiner Lead Phase-down Task Force v. United States Environmental Protection Agency, 705 F.2d 506, 549 (D.C.Cir.1983). Procedural irregularities in administrative proceedings *593 must be prejudicial to a party in order to justify judicial intervention. Melamine Chemicals, Inc. v. United States, 7 CIT ___, 592 F. Supp. 1338, 1341-42 (1984); American Motorists Insurance Co. v. United States, 5 CIT 33, 43 (1983); see John V. Carr & Son, Inc. v. United States, 69 Ct. Cust. 78, 87, C.D. 4377, 347 F. Supp. 1390, 1397 (1972), aff'd, 61 CCPA 52, 496 F.2d 1225 (1974). Here, the issues of whether or not notices should have been sent to the individual defendants under the statute or regulations and whether or not they should have been formally named as the persons owing the penalties are not dispositive. Under the facts of this case, actual notice was received by all defendants and the formal notices sent to Priority Products, and evidently received by Mr. and Mrs. Huss, gave sufficient information to lead a reasonable person to believe that Mr. and Mrs. Huss might be subject to suit in their individual capacities. Thus, no prejudice has been shown by the failure of Customs to adhere to any technical requirement which may be found in the statute or regulations.
The defendants have also moved to limit the plaintiff's monetary claim to the amount of the mitigated penalty. Section 1592(e)(1) (1982) clearly states that all issues, including the amount of the penalty, shall be tried de novo. Thus, the court ruled at oral argument that the amount of penalty would not be limited to the mitigated amount and the full claimed amount would be an issue at trial.
For the above reasons, defendants' motion for judgment on the pleadings and defendants' motion for summary judgment are denied.
NOTES
[1] Inasmuch as defendants will receive a trial de novo before imposition of any monetary penalties, the focus of this opinion is defendants' statutory, rather than constitutional, right of appropriate process.
[2] Defendants apparently responded to the mitigation decision by filing a "criminal complaint and affidavit of information" in district court.
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615 F. Supp. 767 (1985)
PRINTERS II, INC., Plaintiff,
v.
PROFESSIONALS PUBLISHING, INC., Defendants.
No. 84 Civ. 2745 (RWS).
United States District Court, S.D. New York.
July 8, 1985.
As Amended July 26, 1985.
*768 Flemming, Zulack & Williamson, New York City, for plaintiff; Gerald G. Paul, Pamela M. Sloan, New York City, of counsel.
Sudler & Barth, New York City, for defendants; Patrick Barth, Eric M. Cahalan, New York City, of counsel.
OPINION
SWEET, District Judge.
This is a diversity action in which plaintiff Printers II, Inc. ("Printers II"), a District of Columbia corporation, seeks to recover sums owing as a result of its printing the third issue of "Physicians' Travel & Meeting Guide" (the "Guide"), a publication of defendant Professionals Publishing, Inc. ("Pro Pub"), a Nevada corporation with offices in New York City. Judgment will be entered in favor of Printers II upon the facts and conclusions set forth below.
The action was bifurcated as determined in prior opinions, and the nonjury portions were tried to the court by skilled and able counsel on April 1, 4-5, 9-11 and May 13-15, and finally submitted on June 3, 1985. The evidence establishes a course of dealing between the parties that was initiated in trust and confidence and that dissolved under financial pressures in a relatively short time into charges of chicanery and dilatory tactics. As a consequence, a resolution which should have been reached by sensible businessmen has become the subject of a court decree, to the advantage of neither side. The inability to deal rationally with each other may well have resulted from the similarities of the firms, their structures, and their initial relationship, which was described by one witness as symbiotic.
Printers II operates its commercial printing business in Tuxedo, Maryland with 225 employees operating seven presses, a bindery and certain preprinting processes, six days a week, twenty-four hours a day. Eighty percent of its ownership is held equally by the President, Robert Saum, Jr. ("Saum") and its Vice President Melvin Galloway ("Galloway"), who may be broadly termed the Mr. Inside and Mr. Outside, respectively, of the business.
Pro Pub is the brainchild of Stephen Salinger ("Salinger"), who is the publisher of *769 the Guide and has been, among other things, an associate professor of English, engaged in the jewelry business, and the publisher of "Playground," a publication describing events and facilities in the Virgin Islands, Salinger's residence during its publication. Salinger is the Chief Executive Officer of Pro Pub, a Nevada corporation not qualified to do business in New York but with offices here. Alexander Londine ("Londine") is its President. Pro Pub commenced business in 1982 by publication of the Guide.
The Guide is a glossy publication similar in appearance to "Travel and Leisure." It contains a listing of meetings, symposia, and seminars for doctors, described as Medical Event Data, which includes the dates, places and purposes of the events categorized. Editorial matter, articles and advertising are also included. Advertising is the principal source of revenue for the Guide, which has a subscription price of $20 an issue but which is mailed to non-subscribers as well.
The relationship between Saum and Salinger commenced satisfactorily with the printing of "Playground" by Printers II starting in 1980. When Salinger devised his plan for the Guide he discussed it with Saum, received quotes, and on January 21, 1983, 175,000 copies of the first issue of the Guide, consisting of 136 pages, was mailed.
In June and July, 1983 the second issue entitled Summer/Fall 1983 was printed by Printers II and mailed. The second issue consisted of two editions: the pharmaceutical version, which was intended for prescription writing doctors and the consumer version, which was geared to the remainder of the profession. The editorial content of each version was the same, but the advertising in the pharmaceutical version was greater, since certain of the ethical drug manufacturers restrict their advertising to only the prescription writing doctors. One-hundred fifty-five thousand copies of the 120-page consumer version and 135,000 copies of the 168-page pharmaceutical version were mailed by July 5, 1983.
Payments to Pro Pub by the advertisers were based in part on circulation figures, a factor which inhibited Pro Pub's ability to pay Printers II invoices on time or, in certain instances, within the 90 days required by the terms of the invoices. This was of concern to Printers II, who submitted the invoices to its bank in order to obtain financing. In the event of nonpayment within 90 days by Pro Pub, the credit arrangement between Printers II and its bank required a reduction in credit in the amount of the overdue payment. To obviate this problem, Printers II obtained a promissory note on May 31, 1983 as payment from Pro Pub in connection with certain of the invoices rendered with respect to the second issue. The promissory note was paid in full on July 20.
On October 1, 1983 Pro Pub gave a second promissory note in connection with the second issue, which it paid on December 13 with interest in a total amount of $196,127.76. In effect, Printers II was being financed by its bank to enable production of the Guide since certain of the Guide's receipts were deferred. The relationship was understood by both parties. Printers II rendered invoices, and when requested by Pro Pub gave statements relating to the Guide's circulation, neither of which acts reflected all the facts entirely accurately, but were designed in each instance for third-party use.
These arrangements, though understood, were not the subject of any contract or bid subsequent to the first issue. No complaints were raised with respect to Printers II work or billing practice. Salinger was, however, dissatisfied with some of the paper used for the second issue and in August, 1983 met with Printers II employees on the subject in order to resolve the problem. One employee of Printers II was Wally Doerk ("Doerk") in whom Salinger reposed trust. It was he who brought the parties together initially, and it was he who had primary responsibility at Printers II for the Pro Pub account, which was becoming a, if not the, principal account of Printers II. When the relationship between Saum and Salinger began to deteriorate, *770 Doerk left Printers II and become a consultant for Pro Pub. Neither side called him as a witness.
During the August 1983 meeting on the subject of paper, Salinger met with Doerk and a Printers II employee, Rick Saum, and obtained prices for different paper stocks. He then went upstairs to Robert Saum's office where the selection of the paper to be used was discussed. The shortage of paper was considered, and it was concluded that an early purchase would be desirable. Saum advised Salinger that Pro Pub would be invoiced when "the paper hit the floor." Saum gave paper prices to Salinger that were higher than had been quoted by Printers II employees downstairs. Saum also gave Salinger a formula to estimate the costs of paper relative to the number of pages produced. Salinger testified that he believed the prices quoted by Saum to be the price to Pro Pub for the paper to be purchased. No such statement was made, however, and there was no agreement as to the cost of the paper to Pro Pub, particularly in view of the fact that it had not yet been purchased.
Although it had not been set forth during dealings between the parties over "Playground" and the first two issues of the Guide, it had been the practice of Printers II to bill for prep charges, that is, charges for the preparation of plates and similar activities, for paper, for printing, for binding, and for delivery and mailing. Initially, certain of the prep charges were performed by Printers II affiliates, but Salinger was dissatisfied with the work performed and made arrangements for certain of the data processing to be done elsewhere. When Printers II had work performed by outside contractors, a markup was added, a practice which obtained with respect to the cost of paper to Printers II. The printing costs were calculated by a computing process which was based on the number of employees, presses and time involved, as well as a markup.
On October 20 the paper purchased for the third issue was invoiced to Pro Pub in the amount of $97,435.00 in accordance with the parties' understanding. The invoice contained a markup over the cost to Printers II and was forwarded to Printers II's bank for financing. No complaint or other reaction was received from Pro Pub.
By November the job was in progress with a target date of December 15, and Printers II commenced rendering additional invoices. Printers II had determined that as with the prior issue, so-called "Perfect Binding" would be done, by Specialties Binding, a nearby company which possessed the equipment necessary to accomplish such binding, since Printers II did not have the requisite equipment. The printing and binding processes were complicated by the number of inserts from advertisers, which were late in arriving, by the need to produce the two separate versions, and by the use of a more expensive paper for a limited production issue for copies to be supplied to advertisers. The complications were set forth visually in a mock-up which Doerk provided to Specialties Binding in December. Because of these difficulties, the binding operation required eight variations of the publication. In addition, Specialties Binding had significant other commitments. With the equipment working night and day, except for the Christmas holidays, the binding was completed by late January.
The principal problem which delayed completion of the binding was the tip-on, a promotional four page die cut subscription reply folder attached to the cover. This tip-on was not a standard size and could not be applied by Specialties Binding's machines and required hand application.
All involved were concerned by the delays. On December 15 Printers II forwarded invoices including bindery charges. Salinger considered the charges excessive. Saum counselled him not to raise the issue of payment until the job had been removed from the bindery. Between December 13 and 21 Printers II delivered 135,080 copies of the pharmaceutical version, consisting of 240 pages for mailing, and Printers II mailed 185,000 copies of the consumer version, *771 consisting of 168 pages, between December 28 and January 21, 1984.
The printing performed by Printers II was done in timely fashion after the submission of the final copy, and the binding was similarly satisfactorly performed, given the complications inherent in the production as evidenced by Doerk's mock-up on December 15. Meanwhile, on January 18, 1984 the paper invoice became due and payable and Saum called Salinger seeking payment. Saum told Doerk that without some resolution the work would be stopped. This possibility was conveyed to Salinger, presumably by Doerk, and the invoice was paid on January 23. From that time on the propriety of the invoices rendered was challenged by Salinger.
Saum, after investigation, gave Pro Pub a credit for unused paper and obtained a reduction in the Specialties Bindery bill. He collected all the relevant data, mailed a final invoice dated January 17, and then armed with calculations showing that the mark-up on the third issue was less than on the two prior issues, he came to New York on January 27 to resolve the amounts owed by Pro Pub. After a discussion, Salinger stated he would have to confer with his board. No payment was made.
In February, Printers II retained a consultant, Kathryn Rand, who reviewed the Printers II documents, conferred with Londine and on February 15, 1984 submitted a revised bill. In a telephone call shortly thereafter, Printers II through Ms. Rand, offered to accept $386,000 in payment for services rendered in connection with the third issue of the Guide, and Londine indicated he might get authority to offer $381,000 for services rendered in connection with the Guide. However, Ms. Rand also indicated that there were additional invoices outstanding in the amount of approximately $78,000, and Londine broke off the discussions. Saum called Salinger later that day and indicated the additional invoices were closer to $39,000. In fact the amount of the additional invoices for material and services only a small part of which were for the third issue itself was $34,533.44 and has not been disputed. In response to Salinger's request, Printers II sent a final adjusted bill in the amount of $373,470.43 on April 18, giving credit for the $97,435 already paid.
The invoices sent by Printers II to Pro Pub contained certain trade practice provisions; and there was expert testimony presented as well as the testimony of the parties concerning the practices established by the parties. It is customary in the industry for printers performing the functions performed by Printers II in this transaction to markup invoices for supplies, such as paper, as well as invoices rendered by the suppliers of services, such as Specialties Bindery. The preponderance of the evidence establishes that a 5%-10% markup of such invoices is customary and that Printers II's invoices were properly within this range. The practices employed by Printers II with respect to the remainder of its billing were also consistent with industry practice.
Once the negotiations had broken down and the final adjusted billing rendered, Saum determined to exert whatever pressure he could to obtain payment. In early April he wrote to advertisers in the Guide advising them of the dispute with Pro Pub and its failure to pay the amounts Printers II claimed to be owing. These letters raised questions with certain advertisers who contacted Pharmaceutical Media, Inc., the exclusive agency used by Pro Pub to obtain the advertisers. Although Mead Johnson did not renew its advertising for the fourth issue of the Guide, Pro Pub failed to establish that the Saum letter was the cause for the Bristol Meyers action. Instead, Mead Johnson was dissatisfied as a result of improperly handled copy, unsatisfactorily explained by Salinger. No damages were established to have resulted as a consequence of Saums' letter with respect to the four advertisers who did not renew their advertising in the fourth issue of the Guide.
Printers II printed and delivered the third issue of the Guide to Pro Pub, at Pro Pub's request, under the clear and reasonable expectation of getting paid for these *772 services. The 320,000 magazines printed and mailed to the recipients designated by Pro Pub were accepted by Pro Pub. Printers II duly invoiced Pro Pub for the cost of its services. See, e.g., In re Rich, 337 A.2d 764, 766 (D.C.App.1975) (plaintiff can recover for reasonable value of services under quantum meruit when valuable services are rendered for the person to be charged and services are accepted, used and enjoyed under circumstances where person to be charged is reasonably notified that plaintiff expects payment). Both sides agree that Maryland law governs the breach of contract and quantum meruit claims since performance of the contract printing and delivery of the third issue of the Guide to the United States Postal Service took place in Maryland.
Under the facts set forth, there was no specific contract governing the production of the Guide. It was governed by a course of dealing with open price terms. Although the U.C.C. does not explicitly refer to course of dealing in filling in an open price term, it has been interpreted that this method is proper under the Code. Although a contract to print a magazine is not one for the sale of goods and hence the U.C.C. is not directly applicable, North American Leisure Corp. v. A. & B Duplicators Ltd., 468 F.2d 695, 697 (2d Cir.1972); W.H. Smith Publishers, Inc. v. Plexus Publishing Ltd., 557 F. Supp. 546, 548 (S.D. N.Y.1983), nonetheless the U.C.C. reflects the modern trend in contracts and is a useful analogy. U.C.C. § 2-305 provides that when a contract does not specify a price, the reasonable price at the time of delivery will be the contract price. "Neither the Code nor the Official Comments to the Code require that a merchant-seller price at a fair market value under a contract with an open price term, but specify that prices must be `reasonable' and set pursuant to `reasonable commercial standards of fair dealing in the trade'." TCP Industries, Inc. v. Uniroyal, Inc., 661 F.2d 542, 548 (6th Cir.1981). As reflected in the facts found, Printers II's April 18, 1984 invoice represented a fair and reasonable charge for the production of the Guide. The services performed and the goods produced were worth the amounts for which Printers II charged in the final adjusted bill on April 3, and Printers II became entitled to payment of these sums on April 3, 1984, the date of the submission of those invoices.
Pro Pub has counterclaimed for the $97,435 payment, alleging duress and extortion and in addition a civil cause of action under New York Penal Law § 155.05, the latter giving rise to its as yet unresolved jury counterclaim. Even assuming that Saum's comment to Doerk, that the Guide would not be mailed unless the paper invoice was paid, was intended to be relayed to Pro Pub, it does not constitute duress or extortion. Printers II demanded payment of the October 20, 1983 paper invoice pursuant to an agreement with Pro Pub. Pro Pub's failure to pay constituted a breach of that agreement, enabling Printers II to threaten to suspend its own performance and demand payment. Fromm Sales Co. Inc. v. Troy Sunshade Company, 222 Md. 229, 159 A.2d 860, 863 (Ct.App. 1960). It was not extortion for Printer II to demand what it was rightfully entitled to receive under an agreement. Duress exists where there is a wrongful act depriving another of the exercise of his free will. Eckstein v. Eckstein, 38 Md.App. 506, 379 A.2d 757, 761 (1978); Bell v. Bell, 38 Md. App. 10, 379 A.2d 419, 423 (1977); Stewart M. Muller Construction Co., Inc. v. New York Telephone Co., 40 N.Y.2d 955, 390 N.Y.S.2d 817, 359 N.E.2d 328 (1976). A threat to do that which a party has the right to do does not constitute duress. Gerstein v. 532 Broad Hollow Road Company, 78 A.D.2d 292, 429 N.Y.S.2d 195, 199 (1st Dep't 1980).
Printers II's demand that if the payment was not made it would cease delivery of the third issue was a justified response to Pro Pub's failure to pay the invoice. Printers II would have had the right to suspend delivery as a result of Pro Pub's failure to pay the amounts set forth on the submitted invoices. See Fromm Sales Co., *773 Inc., 159 A.2d at 863 (failure to pay for merchandise under contract for distribution of manufacturer's awnings and canopies constituted a material breach, justifying termination of agreement); see also Exhibit III-X. Therefore, the defenses or counterclaims of duress and extortion are dismissed.
Because the counterclaims are dismissed, I need not decide whether Pro Pub, a Nevada corporation not qualified to do business in New York, could properly file counterclaims under Business Corporation Law § 1312. The authorities indicate, however, that a corporation though not qualified to do business in New York and unable to file an action, may still raise counterclaims arising out of a cause of action upon which the corporation is sued. See Tri-Terminal Corp. v. CITC Industries, 100 Misc. 2d 477, 419 N.Y.S.2d 817 (S.Ct.1979); Intra-Mar Shipping v. John Emery & Co., 11 F.R.D. 284 (S.D.N.Y.1951). Consideration of the merits of the counterclaims is therefore proper.
Assuming that the facts presented in the bench trial cannot differ materially from those presented on Pro Pub's jury counterclaim for larceny, it too must be dismissed. No cases have been cited giving rise to a civil cause arising out of a criminal act, but even if the civil claim is assumed, there has been a failure of proof that the crime has been committed. Larceny by extortion requires the taking of property. People v. Dioguardi, 8 A.D.2d 426, 188 N.Y.S.2d 84, 90 (1st Dept.1959) (extortion is the obtaining of property from another, with his consent, delivery of property being induced by force or fear), rev'd on other grounds, 8 N.Y.2d 260, 203 N.Y.S.2d 870, 168 N.E.2d 683 (1960).
Neither threatening to contact the Guide's advertisers nor sending the advertisers letters constitutes the crime of extortion since Printers II did not obtain any money from Pro Pub after the January 23, 1984 payment by Pro Pub of the $97,435.00, and that payment has been determined not to have been obtained through extortionate means. Pro Pub has failed to prove that Printers II intended to exercise "dominion and control over the property wholly inconsistent with the continued rights of the owner," People v. Ricchiuti, 93 A.D.2d 842, 461 N.Y.S.2d 67, 70 (2d Dep't 1983), quoting People v. Olivo, 52 N.Y.2d 309, 438 N.Y.S.2d 242, 420 N.E.2d 40 (Ct.App.1981), that is, that defendant knowingly took property without the rightful owner's consent.
Finally, Pro Pub seeks to resist Printers II's recovery by counterclaiming for libel and tortious interference with its advertising contacts and asserting a prima facie tort as a consequence of the letters sent by Saum to its advertisers in April. Both parties seem to agree that New York law is applicable to the letters sent into this state. Any damages Pro Pub claims to have suffered as a result of lost advertising were presumably felt in New York. Cf. Church of Scientology of California v. Green, 354 F. Supp. 800, 803 (S.D.N.Y.1973) (under New York's conflict of law rules, law applicable to tort of libel is place of most significant relationship: New York law applies where defamed party resides in New York, allegedly libelous letters were received in New York, and publication to third parties in all but one instance took place in New York); Reeves v. American Broadcasting Co., 580 F. Supp. 84, 90 (S.D.N.Y.1983) (although defendants were New York residents and defamatory report was broadcast from Washington, D.C., defamation action was governed by California law, because plaintiff was California resident and report concerned activities in California).
Libelous the letters were not, for they contained no misstatement of fact and because truth is a complete and absolute defense to a claim for libel. Droner v. Schapp, 34 A.D.2d 823, 311 N.Y.S.2d 934, 935 (2d Dep't 1970); Commonwealth Motor Parts Limited v. Bank of Nova Scotia, 44 A.D.2d 375, 355 N.Y.S.2d 138, 141 (1st Dep't 1974).
However, Saum did intend to interfere with Pro Pub's advertising contracts and thereby to put "pressure" on Pro Pub *774 to pay up. Intentional interference with contractual relations requires the existence of a valid contract between the plaintiff and another, defendant's knowledge of that contract, defendant's intentional procurement and breach of that contract, and damages. International Bureau for Protection and Investigation v. Public Service Employees Union Local No. 80, 98 Misc. 2d 409, 413 N.Y.S.2d 962, 969 (Sup.Ct.N.Y.Co. 1979); Livoti v. Elston, 52 A.D.2d 444, 384 N.Y.S.2d 484, 485 (2d Dep't 1976).
Although the placement of advertisements in the Guide was never accomplished by way of a contract between Pro Pub and the advertisers, and any "insertion orders" the Guide may have had for the fourth issue were, in accordance with industry-wide practice, cancellable by the advertisers without penalty, presumably prior to publication, the orders were in fact contracts. Saum sought to affect these as well as Pro Pub's possible future business. However, as set forth above, Pro Pub was unable to establish any damages as a result of Printers II's actions, and the interference with contract cause of action must fail.
A cause of action based on prima facie tort is reserved for those cases falling outside the ordinary categories of tort. National Nutritional Foods Ass'n v. Whelan, 492 F. Supp. 374, 383 (S.D.N.Y.1980). However, Pro Pub bases all its counterclaims on the same allegations. If allegations are insufficient to sustain a traditional cause of action, such as libel or tortious interference with contract, a party cannot prevail under this tort. Further, of course, motives of profit or economic self-interest are not malicious, and even if they are mixed with malice or personal animus, recovery is still barred under a theory of prima facia tort. Rodgers v. Grow-Kiewit Corp.-MK, 535 F. Supp. 814 (S.D.N.Y.1982).
Since Pro Pub's counterclaims are to be dismissed, what remains is the matter of prejudgment interest from April 3, the date of the rendition of the Final Adjusted billing. A debt is liquidated if, at the time it arose, it was an easily ascertainable sum certain. Hartford Accident and Indemnity Company v. District of Columbia, 441 A.2d 969, 974 (D.C.App.1982). Prejudgment interest is generally allowed where there is a sum certain and is allowed as part of damages in the discretion of the judge. Id; Atlantic States Construction Company v. Drummond & Company, Inc., 251 Md. 77, 246 A.2d 251 (1968). If it is provided for, prejudgment interest is calculated at six percent per annum. Hubler Rentals, Inc. v. Roadway Express, Inc., 459 F. Supp. 564 (D.Md.1978), aff'd in part, rev'd in part, 637 F.2d 257 (4th Cir.1981); Peerless Insurance Co. v. Bd. of County Commissioners, 248 Md. 439, 237 A.2d 15 (1968).
Here there was no valid, reasoned basis for nonpayment particularly given Londine's mid February offer. Despite Saum's tortious conduct, which failed to damage Pro Pub, the creditor in this instance should be made whole. Pro Pub cannot be permitted to benefit from its use of sums due and owing to Printers II for the production of the Guide which had been distributed and for which Pro Pub had been, or was being, paid. To hold otherwise would be to grant Pro Pub an unjustified windfall, and prejudgment interest will be allowed.
Submit judgment, with costs, on notice in accordance with these findings and conclusions.
IT IS SO ORDERED.
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343 S.W.2d 226 (1961)
Robert HEJL, Petitioner,
v.
Anna K. WIRTH et al., Respondents.
No. A-7833.
Supreme Court of Texas.
January 25, 1961.
Rehearing Denied March 8, 1961.
Charles G. Trenckmann, Austin, for petitioner.
Emmett Shelton, Austin, for respondents.
GREENHILL, Justice.
The question here is whether the last call in a deed shall be followed as a straight line or whether it is to be held to be a meander line and to run along the thread of a stream. The trial court held the call to be a meander line as a matter of law. That judgment was affirmed by the Court of Civil Appeals, one judge dissenting, 334 S.W.2d 498. We here reverse the judgments of both courts and hold that as a matter of law the call is for a straight line.
The suit was brought by Mrs. Wirth and others as an ordinary trespass to try title suit to recover title and possession to a tract of 72 acres of land in Travis County. The plaintiffs did not claim title by limitations. The defendant Hejl answered with a plea of not guilty and with pleas of limitation. He filed a quitclaim to all of the land described in the plaintiffs' petition except the 6 acres, more or less, indicated on the map below. That 6 acres is the subject of this litigation.
It has long been the rule in this State that in a trespass to try title suit, the plaintiff must recover upon the strength of his own title. Kauffman v. Shellworth, 64 Tex. 179; Hovel v. Kaufman, Tex.Com. App., 1926, 280 S.W. 185; Davis v. Gale, 1960, Tex., 330 S.W.2d 610. If the plaintiff under the circumstances fails to establish his title, the effect of a judgment of take nothing against him is to vest title in the defendant. The rule is a harsh one, but it also has been well established as a rule of land law in this State. French v. Olive, 1887, 67 Tex. 400, 3 S.W. 568; Permian *227 Oil Co. v. Smith, 1934, 129 Tex. 413, 73 S.W.2d 490, 111 A.L.R. 1152.
Hodge is a common source of title. To establish her title to the land in question, the plaintiff Wirth introduced a deed from Hodge to Miller, her predecessor in title, dated 1878. A scaled map of the area in dispute is set out in the opinion of the Court of Civil Appeals, 334 S.W.2d 500, at page 501. The diagram set out below is not drawn to scale but is set out for illustrative purposes and so that the calls in the deed under which Mrs. Wirth et al. claim may be more easily followed.
*228 The description in the deed from Hodge to Miller reads:
"Beginning in bed of Bear Creek; thence North 1330 vs. to Northeast corner of J. M. Hodge tract; thence West 510 vs. to corner in bed of Bear Creek; thence down the same to corner in same about 40 varas below the mouth of Little Bear Creek; thence South 38 East 560 vs. to the beginning, containing 72 acres of land more or less. * * *"
At the time of the conveyance, Hodge owned the land on both sides of Big Bear Creek. Hence he retained ownership of that portion to the west of the tract conveyed above. Subsequently Hodge conveyed that property on the west side. The question is whether the last call which begins in Big Bear Creek and goes "thence south 38 East 560 vs. to the beginning" in Big Bear Creek is a straight line or whether it is a meander line which follows Big Bear Creek to the place of beginning.
Both parties presented motions for instructed verdict at the close of the evidence. Hejl's motion was denied and Mrs. Wirth's was granted. The judgment for Mrs. Wirth et al., as above indicated, rests on the holding that, as a matter of law, the last call in the description is a meander line and that therefore the six acres was conveyed to Miller by the deed from Hodge.
In support of that holding, respondents Wirth et al. cite the following cases: Dutton v. Vierling, Tex.Civ.App., 152 S.W. 450, no writ history; Stover v. Gilbert, 112 Tex. 429, 247 S.W. 841; State v. Atlantic Oil Prod. Co., Tex.Civ.App., 110 S.W.2d 953, writ refused; Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623; County of St. Clair v. Lovingston, 23 Wall. 46, 90 U.S. 46, 23 L. Ed. 59, and Runion v. Alley, 19 Ky. 268, 39 S.W. 849.
It is the position of petitioner Hejl and of the dissenting Justice of the Court of Civil Appeals that as a matter of law the call should be run as a straight line and that the six acres was not conveyed to Miller. In support of that position, they cite McKee v. Stewart, 139 Tex. 260, 162 S.W.2d 948, and Lewallen v. Mays, 265 Ky. 1, 95 S.W.2d 1125.
None of the cited Texas cases is in point. The property line in controversy in Stover v. Gilbert, supra, began on the northeast bank of the Brazos River and was marked out by seven course and distance calls introduced as follows: "Thence down the river the following courses and distance, viz.:" [112 Tex. 429, 247 S.W. 843]. The line in controversy in Dutton v. Vierling, supra, began at a pecan tree on the bank of Brady Creek and ran: "thence S. 79° 25' east down Brady Creek 111.28 vrs. to a stake * * *." [152 S.W. 451.] Three sets of field notes were involved in State v. Atlantic Oil Producing Co., supra. The controversial calls began on the north bank of the Sabine River in each set. The next calls in the respective sets of notes were [110 S.W.2d 555]: "Thence West with said river at 338 vrs.," "thence up said river with its meanders," and "thence West with said river * * *." Each of the calls was followed by some thirty course and distance calls which, when applied on the ground, ran generally along the course of the river. The line in controversy in Strayhorn v. Jones, supra, formed by a number of short course and distance calls was introduced by the words, "Thence following the meanderings of White River and the Salt Fork of the Brazos to a point * * *." [157 Tex. 136, 300 S.W.2d 630.]
In all of these Texas cases, the property lines were formed by course and distance calls which contained, or were introduced by, words such as "down the river," "down the creek," "with said river," "with the meanders of the river," or similar phrases. There is no such language in or introduction to the call forming the line in controversy in this case. The line in controversy in McKee v. Stewart, supra, neither began nor ended in a creek. That decision is not controlling on this point. The Strayhorn and McKee cases discuss the "strip or gore" *229 doctrine, but the respondents Wirth et al. do not here contend that the property in question passed from Hodge to Miller under that doctrine.
We do not regard either of the cited Kentucky cases as persuasive in the fact situation before us. In Runion v. Alley, supra, the court held that a conveyance containing a descriptive call which began at "a stake on the Sandy River" and ran "thence up Sandy River, nearly south, 29 poles 1 link, to a sycamore" conveyed to the thread of the stream. The court said: "It is a well-settled rule of law that a conveyance of land to a water course, and thence with the same, passes title to the thread of the stream, unless otherwise provided or indicated." The holding is harmonious with the Texas decisions analyzed above. It was held in Lewallen v. Mays, supra, that a line beginning on the north bank of a creek and running "thence up same N. 69 E. 32 poles to a beech and elm at the mouth of the branch near a road" [265 Ky. 1, 95 S.W.2d 126] should be run as a straight line and not as a meander line. Considering the Texas decisions analyzed above, it hardly seems likely, in the absence of other controlling circumstances, that a Texas court would agree with that decision.
County of St. Clair v. Lovingston, 23 Wall. 46, 90 U.S. 46, 23 L. Ed. 59, is closer in point. The government there awarded to veterans certain lands. In 1814, it gave Jarrot the tract in question. The description in the grant began at a designated point which was on the bank of the Mississippi River. It continued: "Thence S. 5° W. 160 poles to a point in the river. * * *" The call of South 5 degrees West approximated the bank of the river at that time. The government surveyed the land for another soldier in 1815, a year later, and the description (coming from the opposite direction) was "thence N. 5° E., up the Mississippi River and binding therewith. * * *" Subsequently, substantial land was accumulated by accretion to Jarrot's side of the river; and the question was whether Jarrot's land extended to the river or was limited to the straight line, "S. 5° W. 160 poles" from the place of beginning as set out in his deed; i. e., whether the government intended to retain whatever land there was between that line and the river. The court held that the river and not the straight line constituted the west boundary line of the tract. The Court said:
"It may be considered a canon in American jurisprudence, that where the calls in a conveyance of land, are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise." 90 U.S. at page 64.
The court then analyzed the fact situation before it to show that it would be unreasonable to conclude that the line was not to run with the course of the river.
It will be noted that while the court stated it to be a canon of American jurisprudence that the stream is the boundary of a tract of land when a line begins and ends in or on a stream or its bank, the canon was qualified in this language: "* * * unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise."
We may accept the canon set out in the Lovingston case. But we hold that this case comes within the qualification stated in the rule. We think it clear that in this case, as a matter of law, there is "something which excludes the operation of this rule by showing that the intention of the parties was otherwise." Those distinguishing circumstances and affirmative manifestations of intent are these:
1. Unlike the Lovingston case, the calls in Big Bear Creek do not consist merely of two calls, one of which begins and the other ends in the creek. The first call here which *230 begins in the creek says, "thence down the same [Big Bear Creek] to corner in same about 40 varas below the mouth of Little Bear Creek." The parties thus deliberately went down the creek with a meander call for a certain distance to a corner. If they had intended for the entire western and southern boundary to be the thread of the creek, they could have said from the first point in the creek: "thence down the same to the place of beginning."
2. After having come down Big Bear Creek with its thread to a corner below Little Bear Creek, the call does not continue "down the same," or "with the same," or words of similar import, but makes a call directly to the place of beginning without regard for the creek. Having demonstrated that they knew how to come down the creek to the point below Little Bear Creek, the parties or their attorneys placed in the deed a description which plainly and unambiguously called for a straight line to the place of beginning. Incidentally, the call below Little Bear Creek was to a "corner." While we would not rest the matter on the use of the word "corner," its use might be considered an additional circumstance that the parties intended the point to be a corner and not simply a passing call on the way down the thread of the stream.
As stated above, the respondents Wirth et al. do not contend that the 6 acres in question passed from Hodge to Miller under the "strip or gore" doctrine. We therefore express no opinion on that question.
The presumption that the grantor conveyed to the bed of a stream belonging to the grantor is a rebuttable one. It is a rule of construction used to assist in arriving at the intention of the parties. It may be rebutted by words which clearly indicate an intention to restrict the grant to points other than the thread of a stream. 8 American Jurisprudence 762, Boundaries § 23. We hold that such intention is manifest here as a matter of law. The call, "thence down the same to corner in same about 40 varas below the mouth of Little Bear Creek," is a meander call. The last call, "thence south 38 East 560 varas to the beginning" is a boundary line and does not follow the center line of the creek.
Under this construction of the Hodge deed to Miller under which Mrs. Wirth and others claim, we do not reach the question of title by adverse possession to the tract in question.
Under our construction of the deed from Hodge to Miller under which the plaintiffs Wirth et al. claimed, the plaintiffs in this trespass to try title suit failed to establish their title to the 6 acres in dispute. The judgments of the courts below are therefore reversed and judgment is here rendered for the petitioner Hejl.
STEAKLEY, J., not sitting.
CALVERT, Chief Justice.
I concur in the judgment entered. My difference with the majority lies in our approach to the problem.
The ultimate problem, as in all cases involving the interpretation of deeds, is one of ascertaining the intention of the parties to the Hodge-Miller deed. Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608; Garrett v. Dils Co., 157 Tex. 92, 299 S.W.2d 904; 19 Tex.Jur.2d., 391, 455, Deeds, Secs. 107, 145. The preliminary problem is one of evidence and may be stated thusly: What rules of evidence should be used in ascertaining the intention of the parties to the deed?
As I understand their opinion, the majority approve the rule quoted from the opinion of the Supreme Court of the United States in County of St. Clair v. Lovingston, 23 Wall. 46, 90 U.S. 46, 64, 23 L. Ed. 59, as follows:
"It may be considered a canon in American jurisprudence, that where the calls in a conveyance of land, are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner *231 to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise."
That is a novel rule in the jurisprudence of this state and I seriously question the wisdom of our approving it. Although announced in the Lovingston case in 1874, the rule has never been approved by the courts of this or any other state and it has not been cited with approval by any federal court since 1904. I doubt that we can live with the rule.
The effect of the Lovingston rule is to create a presumption that any line, marked out by the descriptive calls in a deed, beginning and ending in or on the bank of a stream, is intended by the parties to be a meander line, and, in the absence of evidence of a contrary intent, it will be run as such. Whether the evidence of a contrary intent must be found in the deed or may be extrinsic is not stated. In this case the only evidence of intent considered by the majority is found in the deed. In the Lovingston case only extraneous facts were mentioned by the court as evidence of intent. What evidence may be considered by the court, a question unanswered in the majority opinion, is but one of many troublesome and vexing problems which approval of the Lovingston rule will bring. An analysis of the distinctions made by the majority between the two cases will disclose some of them.
The majority note only two points of distinction. These distinctions are based entirely on the number, arrangement and wording of the calls in the two deeds. Aside from the fact that the rule as announced in Lovingston recognizes no qualification based on the number or sequence of the calls which precede or form the line beginning and ending in or on the bank of a stream that is, whether the critical line precedes or follows another which expressly meanders the stream and expressly recognizes that it will apply when the line runs from one "corner" to another "corner" in or on a stream, the distinctions noted by the majority are less than convincing. To illustrate: Suppose the field notes in the deed in the Lovingston case were exactly the same but the critical line cut off 50 acres in the bend of a river or stream, would we then look only to the face of the deed, as the majority do in this case, and say that because of the number, arrangement and wording of the calls the line should be run as a meander line and the deed should be held to convey the 50 acres? I doubt it. Or suppose the field notes in the Hodge-Miller deed were exactly the same but the critical line cut off one-tenth of an acre instead of six acres, would we then say that the number, arrangement and wording of the calls established as a matter of law that the parties intended the critical line to be a boundary rather than a meander line and thus exclude the one-tenth of an acre from the conveyance? I doubt it. If we would not make those holdings, the distinctions made in the majority opinion are immaterial distinctions and will surely haunt us in future cases.
I would reject the rule of the Lovingston case and would continue to adhere to the rules long followed by the courts of this state in the interpretation of deeds. Those rules are settled and familiar and, on the whole, present fewer problems. When the descriptive calls in a deed are clear, admit of no ambiguity, and clearly identify the land conveyed, the lines of the property conveyed should be run precisely according to the descriptive calls unless a latent ambiguity develops when they are run on the ground. Richey v. Miller, 142 Tex. 274, 177 S.W.2d 255, 257, 170 A.L.R. 832; McKee v. Stewart, 139 Tex. 260, 162 S.W.2d 948, 950; 19 Tex.Jur.2d 455-457, Deeds, Sec. 145. If an ambiguity develops when the lines are run on the ground, recourse may be had to any competent and relevant evidence to ascertain the intention of the parties and resolve the ambiguity. 19 Tex. Jur.2d 487-495, Deeds, Secs. 165-169; *232 Texas Law of Evidence by McCormick and Ray, Vol. 2, Sec. 1687.
The field notes in the Hodge-Miller deed are clear and unambiguous. The land they describe is clearly identifiable. Respondents do not claim that a latent ambiguity develops when the field notes are put on the ground. Neither do they contend that the six acres were impliedly conveyed under the strip and gore doctrine. The judgment entered is therefore a correct judgment and I concur in it.
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343 S.W.2d 517 (1961)
A. T. LITTLE, Appellant,
v.
EMPLOYEES SECURITY LIFE INS. COMPANY et al., Appellees.
No. 15763.
Court of Civil Appeals of Texas, Dallas.
January 20, 1961.
Rehearing Denied February 17, 1961.
*518 James L. Mitchell, Dallas, for appellant.
Shank, Dedman & Irwin, Ralph B. Shank, Dallas, for appellees.
WILLIAMS, Justice.
This is an appeal from a judgment of the District Court sustaining appellees' motion for summary judgment. A. T. Little, appellant, sued Employees Security Life Insurance Company and its successor, Mercantile Security Life Insurance Company, for damages arising from an alleged breach of an employment contract. Appellant seeks a reversal of the trial court's judgment, complaining in his only point, that the trial court erred in "rendering summary judgment, genuine issues of material facts were raised by the pleadings, the exhibits, and depositions on trial." At the outset appellees complain that this point does not comply with Rule 418, Texas Rules of Civil Procedure, in that it is too general. A similar situation was presented to this court in Wyche v. Noah, 1956, 288 S.W.2d 866, 867, n. r. e., in which the complaint was urged concerning the generality of the point of the trial court "overruling appellant's motion for summary judgment." Chief Justice Dixon of this Court, in overruling the point, pointed out that while the point may be too general this court will discuss the grounds as we understand them upon which appellant apparently relies to support his appeal, as disclosed in the statements and arguments accompanying his points on appeal. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478. We overrule appellees' objection.
It is undisputed in this record that on April 24, 1956 appellant entered into a contract in writing with the Employees Security Life Insurance Company, such contract providing for a salary of $1,000 per month together with a renewal pension of not less than $300 per year, and providing for certain expenses. The contract was for a period of one year and was subject to be renewed from year to year upon the "mutual consent of both parties." Intention not to renew the contract by either party required ninety days written notice. Apparently both parties were satisfied with the performance of this contract in its initial term and, on December 13, 1956 by letter signed by both parties such contract was extended, without change in its terms, for another twelve months period ending April 24, 1958. From this point forward, however, the testimony is in conflict as to the renewal or extension of this contract for an additional period beyond April 24, 1958.
*519 Appellant, by alternative pleading, alleges that in January 1958 he entered into one of three possible contracts or extensions of the original contract: (1) a contract for two years from March 15, 1958 to March 15, 1960; (2) a contract for an additional twelve months from April 24, 1958 to April 24, 1959; and (3) a contract renewed by operation of law for an additional twelve months from and after April 24, 1958. Appellant alleged that appellees breached one of the alleged contracts on or about July 10, 1958, the date when he ceased his services for appellees, by reason of wrongfully discharging him. Appellees answered by (1) general denial, and special defenses of (2) that appellant resigned, (3) that appellant executed a full release, (4) accord and satisfaction, (5) the contract alleged was void and unenforcible because it violated the Statute of Frauds. In the alternative appellees alleged appellant was discharged for cause.
In considering appellees' motion for summary judgment, the trial court had before him the deposition of the appellant Little, together with a number of written exhibits, the depositions of C. R. Sargent, the Vice-President of appellees' insurance company, and the deposition of Durwood Sutton, a Director and member of the Executive Committee of the appellees' insurance company.
We agree with appellant that this being an appeal from a summary judgment, this court has but one question to consider, i. e. Are there any material issues of fact raised by the pleadings and evidence before the court? The rule, which has been firmly established by our Supreme Court, is announced as follows:
"In determining the question of whether or not material issues of fact were raised by the evidence, the court must, under the law, first review all the evidence in the light most favorable to the petitioners; disregard the conflicts in the testimony; and indulge, in favor of the petitioners, every intendment reasonably deducible from the evidence." Smith et al. v. Bolin et al., 1954, 153 Tex. 486, 271 S.W.2d 93, 94; Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929.
Appellees' contention and argument that the trial court's judgment in sustaining summary judgment is correct necessarily postulates the nonexistence of issuable facts. We have carefully reviewed the record and find ourselves unable to agree with appellees in this regard.
The principal question involved is whether there was a valid contract of employment between appellant and appellees on or about July 10, 1958, which is admittedly the date when appellant ceased his connection with appellees' insurance company. As stated above, the testimony is uncontroverted that there was an original contract and that this contract was renewed for a period ending April 24, 1958. However, from this point onward there is a sharp conflict in the testimony concerning the alleged renewal of the contract for an additional period, either for one year or for two years, as contended by appellant. The original contract provided that it might be extended "by mutual agreement" of the parties. Prior to the expiration date of the extended contract, during the early part of 1958, there is evidence of negotiations and conversations between appellant and the officials of the appellees' insurance company. Appellant, Little, testified in his deposition:
"Q. This (referring to the extension of the original contract) provides for the termination date to be April 24, 1958, does it not?`A. That is correct.
"Q. Alright now, when was your contract renewed in 1958, or was it renewed? A. It was renewed sometime around the Christmas holidays, in Mr. Turner's office with consent of Mr. Turner and Mr. Sargent, and possibly Mr. Sutton; I am not sure about the latter.
"Q. Was it written? A. I brought it up, it was in typewritten form, which *520 proposed several things, in the meantime Mr. Sargent told me that President Turner felt that the company should do something for me for the new year, due to the nice increase business that we had had in 1957, so that at that time I asked President Turner for an increase in salary, and it was agreed that it would be renewed for $1,250 per month for the next year.
"Q. With whom did you have that agreement? A. It was agreed between President Turner and Mr. Sargent and myself, and probably Mr. Sutton."
He then testified concerning a written memorandum which is attached to plaintiff's depositions, which said memorandum set forth various details concerning an extension of the original contract. This memorandum of agreement is signed by appellant A. T. Little and is also signed by Mr. G. H. Turner, President of appellees' company.
This testimony is sharply controverted by the testimony of Durwood Sutton, Director and Member of the Executive Committee of the appellees' company. He testified that to his knowledge, there were no negotiations for a new contract between the parties after 1957. He flatly denied that there was a new contract which would be effective after April 24, 1958.
Appellees insist that, as a matter of law, such claimed new contract would be in violation of the Statute of Frauds. As a general rule, parol agreements to extend the time for performance of contracts required by the Statute of Frauds to be in writing are void. However, this rule is modified to the extent that parol extension of the contract required by Statutes to be in writing is valid when made before the date of performance has expired, as in this case. Watkins v. Arnold, Tex.Civ.App., 60 S.W.2d 476 and Bullis v. Noyes, 75 Tex. 540, 12 S.W. 397. Even so, there is a clear cut issue drawn as to the existence of a memorandum in writing signed by both parties which would bring the agreement within the provisions of the Statute of Frauds. While there is some question concerning Mr. Turner's signature it definitely appears thereon, and it is not our province on this appeal to indulge in any speculations or finding on conflicting issues of fact.
Appellees next contend that if there was a contract, that appellant Little resigned his position with the company in July 1958, and further contends that this is shown to be a fact by the uncontroverted evidence. With this we are unable to agree. Mr. Sargent testified that Mr. Little resigned orally; that his resignation was accepted; and that such acceptance was conveyed to Little by him on July 10. Mr. Sutton testified that Mr. Little agreed to resign at a meeting of the Board of Directors early in July; that the Board agreed to accept his resignation. However, he admitted that there was no official recordation of this action until a meeting of the Board in September of 1958. Appellant Little testified that when Mr. Sargent came to him and told him that his resignation had been accepted that he was "flabbergasted". It is quite obvious that this testimony raises an issue of fact.
Appellees next contend that appellant's cause was completely released by a written instrument signed by Little, said release being set forth in appellees' pleadings. In this connection Little testified that he went to see Mr. Sutton; that Mr. Sutton pushed some papers out to him across the desk and told him "sign here" and that he did sign them. He said that he did not read the papers, relying on the representations of Sutton that it was merely a form for his bonus payment. He flatly denied that he read the release and contended he did not know its effect. To the contrary Mr. Sutton testified that Mr. Little read the release before signing it. Obviously this creates an issue of fact.
Appellees next lay great stress on the proposition that Mr. Little had written one *521 or more letters, seeking employment with other insurance companies, in which letters he has stated that he had resigned from appellees' company. Contention is made that these statements contained in the letters effectively bar Mr. Little in his efforts to deny that he had resigned from the company. Again, we are unable to agree with this contention in the light of the complete evidence in this case. Little did admit that he had written one or more letters, seeking employment, in which he had stated that he "had resigned" from appellees' company. On the other hand he had also written one or more letters stating that he had been discharged by appellees' company. Quoting from his testimony:
"Q. Did you ever apply for any job since July 10th or July 11th, 1958, in which you told them that you had resigned, instead of being discharged? A. Yes.
"Q. Did you tell anyone other than the Western Fidelity Insurance Company that you had been discharged, when you applied for job? A. Yes, sir.
"Q. Who did you tell? A. I told each one of them when I knew the President personally, like I knew Mr. Gardner, which would be approximately half of them for example.
"Q. Then you told some of them that you had resigned, and others that you had been discharged? A. That is correct."
We are not able to agree with appellees that this testimony of Little is so clear and convincing as to constitute a binding admission on him concerning his alleged resignation with the company. It is obvious from his testimony that he does not make a clear and positive statement. He makes conflicting statements which may or may not be explainable in the light of his effort to obtain employment with other companies. Be that as it may, the testimony presents such conflict that it should be decided by a trier of facts.
Appellees next assert that the contract sued upon was for a period of in excess of one year and therefore against public policy of the State. Since 1951, it has permitted corporations, through its board of directors, to enter into contracts of employment for such period of time as they wish if such is not prohibited by the Charter and By-Laws of the Corporation. Art. 1327, Vernon's Annotated Civil Statutes art. 2.02, of the Texas Business Corporation Act, subd. A(12), V.A.T.S. specifically provides for the election or appointment of officers and agents of corporations for such period of time as the corporation may determine. This contention is overruled.
Finally, appellees urge that the contract sued upon is not enforcible and void in that it violated art. 3.02 of the Insurance Code, V.A.T.S., and also art. 3.68 of the Insurance Code, therefore against public policy. Art. 3.12 provides that no domestic corporation shall pay any salary or compensation to any officer of the corporation amounting in any one year to more than $10,000 unless such is first authorized by vote of the Board of Directors or by a committee of such Board. Art. 3.68 provides that no insurance company shall pay its officers compensation or commission contingent upon the renewal premium. We overrule appellees' contention in both of these regards. The record raises issues of fact concerning the approval of the salary of appellant by the Board of Directors or Executive Committee. It also raises an issue of fact as to the exact nature of the compensation paid.
Considering the record as a whole, we sustain appellant's point of appeal and overrule appellees' counterpoints. There being ample evidence of issuable facts to be determined by trier of fact, the trial court erred in sustaining the motion for summary judgment.
The judgment of the trial court is reversed and remanded for trial on the merits.
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495 Pa. 612 (1981)
435 A.2d 174
COMMONWEALTH of Pennsylvania, Appellant,
v.
Larry E. HAGGERTY.
Supreme Court of Pennsylvania.
Argued September 14, 1981.
Decided October 8, 1981.
*613 F. Walter Bloom, Dist. Atty., William G. Martin, Jr., Asst. Dist. Atty., Franklin, for appellant.
John J. Morgan, Butler, for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.
OPINION OF THE COURT
PER CURIAM:
Appellee Larry E. Haggerty was charged with burglary and arson. A first trial ended in a mistrial on January 24, 1978. Subsequently, appellee was convicted by a jury of burglary. Post-verdict motions were denied and appellee was sentenced to a prison term of seven and one-half to fifteen years.
On appeal the Superior Court reversed, holding that appellee's confession should not have been admitted into evidence *614 because appellee had not been arraigned within six hours of his arrest as required by Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Commonwealth v. Haggerty, 282 Pa.Super. 369, 422 A.2d 1336 (1980). We granted the Commonwealth's petition for allowance of appeal and this appeal followed.
The instant appeal involves only the factual determination of when appellee was arrested. The facts are as follows. Following a fire at Franklin High School, appellee was questioned by police at his home for approximately fifteen minutes on October 5, 1977. Appellee denied any knowledge of or involvement in the incident. Five days later, on October 20, 1977, two plainclothes policemen went to appellee's house at 11:00 a.m. Appellee's wife woke him and the police asked appellee if he would come to the State Police barracks to discuss his earlier statement concerning the fire. Appellee agreed. Upon arrival at the barracks, appellee waived his Miranda rights. He was questioned for ninety minutes but he denied any involvement in the incident. Appellee then agreed to take a polygraph examination. Since the polygraph examiner was administering a test to another individual, appellee and a police officer remained in the investigator's room.
The polygraph test began at 2:30 p.m. About an hour later, the polygraph examiner informed one of the original interviewing officers that appellee had admitted his involvement in the fire. Appellee was arraigned at 5:55 p.m.
Appellee claims that he was arrested at 11:00 a.m., thus making his arraignment almost seven hours after arrest and outside the six hour period mandated by Commonwealth v. Davenport, supra. The Commonwealth, on the other hand, argues that appellee was not arrested until immediately after his initial admission of involvement at some time between 2:30 p.m. and 3:30 p.m.
In Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, (1963), we stated:
"An arrest may be accomplished by `any act that indicates an intention to take [a person] into custody and that *615 subjects him to the actual control and will of the person making the arrest.' Am.Jur.2d, Arrest, § 1, p. 695."
We have also held that the test is an objective one, i.e., viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized. Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). We are of the opinion that the instant record contains nothing which would indicate that the officers attempted to subject appellee to their will and control before appellee admitted involvement in the instant crime. It is thus our view that on this record appellee was not arrested until sometime between 2:30 p.m. and 3:30 p.m. As the arraignment was well within the six hour period mandated by Davenport, we believe the Superior Court erred in granting a new trial for this reason.
Because the Superior Court reversed on this issue, that Court did not address other assignments of error raised by appellee. Therefore:
The Order of the Superior Court is reversed and the matter is remanded to Superior Court for consideration of appellee's remaining assignments of error.
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291 Pa. Super. 375 (1981)
435 A.2d 1275
Frank J. FIDEI and Joe M. Lena, Appellants,
v.
Fred P. UNDERWOOD, his Unknown Heirs, Assigns or Devisees.
Superior Court of Pennsylvania.
Argued January 14, 1981.
Filed October 16, 1981.
Petition for Allowance of Appeal Denied January 29, 1982.
*376 Robert J. Milie, Greensburg, for appellants.
George M. Lynch, Latrobe, for appellee.
Before SPAETH, SHERTZ and MONTGOMERY, JJ.
MONTGOMERY, Judge:
The instant appeal arises from an order of the lower court, sitting en banc, which sustained the exceptions filed by the Defendant-Appellees and dismissed the Plaintiff-Appellants' Complaint. The case involves an action to quiet title commenced by the Plaintiff-Appellants, who purchased property at a Treasurer's sale. The Defendant-Appellees are the heirs of the deceased former owner of the property.
The record shows that on May 8, 1926, Fred P. Underwood purchased a tract of land situated in Derry Township, Westmoreland County, from the Baum Coal Company. The property consisted of some 351/5 acres. On August 8, 1947, *377 Fred P. Underwood died testate, and by the residuary clause in his will the property in question passed to his three sons, James M. Underwood, Joseph R. Underwood and Thomas P. Underwood. They, or their respective heirs, are the real Appellees.
Taxes assessed against the property for the tax years 1953 and 1954 were not paid, and on August 6, 1956 the County Treasurer sold the property to the Westmoreland County Commissioners. No right of redemption was ever exercised. Notice of the proposed Treasurer's sale was sent to "Fred P. Underwood, Latrobe, Pennsylvania," the then-deceased owner, but the letter containing the notice was returned marked as "unclaimed". No notice was ever given by the Treasurer to the Appellees, the then true owners of the property, as required by the County Return Act of 1931,[1] nor was any notice of the sale posted on the property itself by the Treasurer prior to the sale, an alternative method of service provided in the same Act. The Treasurer did give newspaper notice, which is also required under the aforementioned statute, that the property would be sold. Notice was given in the County Law Journal and in two newspapers of general circulation that two properties belonging to Fred P. Underwood would be sold. Such newspaper notices described the properties as: "12A Freeport Coal" and "341/5 A." of land in Derry Township. No other descriptions of the property were given.
In 1975 the Appellants purchased the subject property from the Westmoreland County Commissioners. Subsequently they filed the instant action to quiet title against Fred P. Underwood, his unknown heirs, assigns or devisees.
The lower court initially found the sale of the land to the Appellants to be valid. After the Appellees filed exceptions, however, the lower court, sitting en banc, sustained the Appellees' exceptions and dismissed the Appellants' Complaint. In its Opinion the trial court found that the description *378 of the property in the newspaper advertisements was legally sufficient, citing for authority the decisions of the Supreme Court in Bannard v. New York State Natural Gas Corp., 448 Pa. 239, 293 A.2d 41 (1972) and Boulton v. Starck, 369 Pa. 45, 85 A.2d 17 (1951). Further, the trial court found that the defects in service of notice of the sale, as required by the County Return Act of 1931 (72 P.S. § 5971g), were validated by the curative provisions set forth in the Act of November 26, 1978, P.L. 1294, No. 310, § 1, immediately effective, 21 P.S. § 283.3.[2] Subsequently, in an opinion explaining its reversal of the trial court's decision, the court en banc stated that the trial court had given too broad an application to the 1978 curative Act. The court en banc noted that the County Return Act of 1931 required the County Treasurer to serve notice upon the owner of the land. At the time the taxes became delinquent, and at the time of the sale, the owners were the aforementioned sons of Fred P. Underwood. However, the notices were sent to the father, who by then had been deceased for several years.[3] For these reasons, the court en banc found that more than a simple cure of a technically defective notice was required, as there was no notice to the then-existing true owners. The *379 court en banc concluded that the Act of November 26, 1978 did not apply in such circumstances, and held the sale to be invalid. In sustaining the exceptions filed by Defendant-Appellees and dismissing the Complaint, the court en banc rejected an alternative claim for reimbursement of various expenses by Plaintiff-Appellants, a subject which will be more fully discussed later in this Opinion.
After a thorough review of the total record, we have concluded that the lower court en banc was correct in holding that the unquestioned defects in the 1956 tax sale proceedings in this case could not be cured by the application of the Act of November 26, 1978. That Act, by its terms, is clearly intended to validate pre-December, 1965 tax sale proceedings involving only minor technical defects. Defects such as the filing of a proof of service may not be equated with a total failure by the County Treasurer to effect any notice to the true owner or owners, in this case the sons of the deceased former owner.[4] The Act of November 26, 1978 may not be held to provide a cure for such serious procedural defects.[5] It has been held that the notice provisions of a tax sale statute must be strictly complied with to guard against deprivation of property without due process. See Patterson v. Oakes, 260 Pa.Super. 415, 394 A.2d 995 (1978). The failure of any actual or attempted notice to the true owners completely contravened the provisions of the County Return Act of 1931, cited supra, and the August, 1956 Treasurer's sale must be invalidated. Compare Blasi v. Alexander, 195 Pa.Super. 634, 171 A.2d 904 (1961).
*380 We are left with the Appellants' remaining contention that, even if the sale was not valid, the lower court erred in refusing to order reimbursement to them for several items of expense they claimed. These included the purchase price for the property at the Treasurer's sale, taxes paid for the years 1974 through 1978 on the acreage and coal contained thereon, and attorneys costs and fees incurred in the whole transaction.
The lower court en banc initially noted that the taxes paid on "12 acres of Freeport coal" were paid because of an error in the Tax Assessment Office. The court found that the 12 acre parcel was not included in the proceedings under which the Appellants procured their deed, nor was such parcel included in their action to quiet title. Therefore, the court found it had no basis for ordering any restitution of taxes erroneously paid by Appellants on that property in the quiet title proceedings. The Appellants have offered no argument on this appeal specifically contesting that finding by the lower court, and no basis for reversal of that aspect of the lower court's findings is apparent to us. Likewise, the Appellants have not presented any argument to this Court as a basis for recovery of attorneys costs and fees incurred, and we find no ground for ordering the Appellees to reimburse the Appellants for such expenses.
The Appellants note in their Brief a recognition that ". . . the general rule of law governing tax sale situations is that there would be no reimbursement of any costs or taxes paid. . .". Nevertheless, they argue that equity demands that they be reimbursed by the Appellees for taxes paid (other than on the coal parcel discussed above), from 1974 through 1978, and for the purchase price Appellants paid for the property. We must first agree with the Appellants that the general rule is that there is no right of reimbursement, at least from the true property owners, for either the purchase cost or subsequent tax payments by a tax sale purchase after an invalid sale. Gaul v. McLaughlin, *381 207 Pa.Super. 434, 217 A.2d 757 (1966)[6]; See also United States v. 137.02 Acres of Land, 334 F. Supp. 1021 (1971). We cannot agree that unjust enrichment or any other equitable principle justifies forcing the true property owner or owners to reimburse tax and other costs paid, with respect to their land, without their proven knowledge, request, or even consent. Thus, we see no basis for ordering such restitution here, against the true property owners.[7]
The order of the lower court is hereby affirmed.
NOTES
[1] See the Act of May 29, 1931, P.L. 280, § 7, as amended, 72 P.S. 5971g, which was applicable to Westmoreland County at the time of the sale.
[2] The Act of November 26, 1978 provides:
Whenever, prior to December 31, 1964, any property was sold by a county treasurer for the purpose of securing the payment of delinquent taxes which were assessed and levied against such property, and no proof of service was filed or in lieu of personal service the property was not properly posted or if it was properly posted the certificate of posting was not filed or as if the proof of service had been filed, or if no proof was filed, if, in all other respects the law relating to the holding of such sale was fully compiled with, all such sales and county treasurer's deeds are hereby ratified, confirmed and validated and the title to any such property purchased by any person or by the county commissioners of the county is hereby declared to be as valid as if the proof of service had been filed or as if the property had been properly posted or the certificate of posting had been properly filed.
[3] The court en banc pointed out that the tax assessment records then still listed the decedent as the owner, but that his estate no longer owned it. The General County Assessment Law, Act of May 22, 1933, P.L. 853, art. IV, § 417, 72 P.S. § 5020-417, permits the assessment of property in the name of the decedent only so long as the property shall still belong to the estate of such deceased person.
[4] In this case, any blame is probably correctly placed in the office of the County Assessor in 1956. The Assessor had (and has) the duty, under law, to ascertain the owner of each tract of land at the time of each assessment of taxes. See The General County Assessment Law, Act of May 22, 1933, § 407(c), as amended, 72 P.S. § 5020-407(c); Shafer v. Hansen, 389 Pa. 500, 133 A.2d 538 (1957).
[5] Because we reach this conclusion, it is not appropriate that we examine the issue of whether the curative Act of November 26, 1978 violates due process Constitutional guarantees, as argued by the Appellees. Also, we need not pass upon the Appellees' contention that the description of the property was insufficient in the advertised notices of the sale.
[6] We recognize that the Supreme Court noted in Shafer v. Hansen, supra at footnote 4 that the defendants were paying plaintiffs for tax money with interest, expended by the plaintiffs in the purchase of the defendants' property at a Treasurer's sale. However, the Court was not there presented with the issue of a right to reimbursement, and was only noting a stipulation of the parties as to agreed relief upon a disposition of the property in favor of the defendants.
[7] We express no opinion as to whether the Appellants may have a cause or causes of action for restitution or damages against any other person or entity, for the losses they have experienced in this transaction.
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776 F.2d 1060
Webbv.U.S. Postal Service
84-1643
United States Court of Appeals,Federal Circuit.
7/22/85
MSPB, 21 M.S.P.R. 493
Affirmed
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Espinoza v. State
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-526-CR
GILBERT ESPINOZA,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0912204, HONORABLE CARL C. ANDERSON, JUDGE PRESIDING
A jury convicted Gilbert Espinoza, appellant, of sexual assault and assessed
punishment, enhanced by two prior felony convictions, at life imprisonment. See Act of May 29,
1983, 68th Leg., R.S., ch. 977, § 3, 1983 Tex. Gen. Laws 5311, 5312-15 (Tex. Penal Code Ann.
§ 22.011, since amended). On appeal, appellant asserts, first, that the prosecutor impermissibly
commented on appellant's failure to testify and, second, that the trial court erred in admitting
evidence of a prior conviction during the punishment phase of the trial. We will affirm the
conviction.
Because of the nature of the points of error asserted by appellant, only an
abbreviated statement of the facts is necessary. The complainant was a thirty-year-old Austin
woman. The assault occurred at the complainant's house during the evening in April 1991. The
complainant had been introduced to appellant earlier in the day at a neighbor's house. Appellant
entered the complainant's residence through a kitchen window. When she demanded that he
leave, he wrestled her to the floor, threatened her, and raped her. The only persons in the house
at the time were appellant, the complainant, and the complainant's young son, who was asleep in
his bedroom. Thus, the only witnesses to the crime were appellant and the complainant. The
complainant testified, but appellant did not.
COMMENT ON APPELLANT'S FAILURE TO TESTIFY
In his first point of error, appellant contends that two portions of the prosecutor's
argument constituted comments on appellant's failure to testify. During closing argument of the
guilt/innocence phase of the trial, the prosecutor argued as follows:
Possible defensive theories. I was trying to think of possible defensive theories.
Well, what would you defend this with? Well, the defendant wasn't there. Well,
you heard no evidence that the defendant was not there because he was there.
Yvette Miller testified to that, corroborated the testimony of Michelle Peterson.
Okay, he was there . . . and they had sex, but it was consentual [sic]. You heard
no testimony that any of this was consen[s]ual. The testimony was it was forced.
There was no testimony, no evidence that it was not -- that it was consen[s]ual.
To this argument appellant neither lodged an objection nor made any other request for relief.
Appellant correctly asserts that the United States and Texas constitutions and article
38.08 of the Code of Criminal Procedure prohibit a prosecutor from commenting on the
defendant's failure to testify. U.S. Const. amends. V, XIV; Tex. Const. art. I, § 10; Tex. Code
Crim. Proc. Ann. art. 38.08 (West 1979). In opposition, the State argues, as a preliminary
matter, that appellant's first point of error presents nothing for review because he failed to
preserve the complaint for appellate review. We agree.
1. Application of Rules of Appellate Procedure
Rule 52(a) of the Rules of Appellate Procedure provides:
In order to preserve a complaint for appellate review, a party must have presented
to the trial court a timely request, objection or motion, stating the specific grounds
for the ruling he desired the court to make if the specific grounds were not
apparent from the context. It is also necessary for the complaining party to obtain
a ruling upon the party's request, objection or motion.
Tex. R. App. P. 52(a) (emphasis added). This Court has stated, in the context of a criminal case,
that Rule 52(a) means what it says. See Marin v. State, 801 S.W.2d 944, 946 (Tex. App.Austin
1990, pet. granted).
In the present case, the latter portion of the prosecutor's argumentthat asserting
an absence of evidence of consentappears to have been improper. See, e.g., Cook v. State, 702
S.W.2d 597, 600 (Tex. Crim. App. 1984). However, because appellant made no objection
whatsoever at trial to the State's argument, he has not preserved this complaint for appellate
review. Tex. R. App. P. 52(a). Therefore, nothing is presented for review.
If appellant's brief can be construed to assert fundamental error, we hold that the
prosecutor's comments did not cause such egregious harm as to undermine the basic fairness and
impartiality of appellant's trial. See Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App.
1984).
2. Application of Law Before Rules of Appellate Procedure
Even before September 1, 1986, when the Rules of Appellate Procedure were
adopted, the Court of Criminal Appeals had held on numerous occasions that in the absence of
a trial objection to a comment by the prosecutor on the defendant's failure to testify, nothing is
presented for review. See Martin v. State, 630 S.W.2d 952, 956 (Tex. Crim. App. 1982); Valore
v. State, 545 S.W.2d 477, 481 (Tex. Crim. App. 1977); Beal v. State, 520 S.W.2d 907, 912
(Tex. Crim. App. 1975); Craig v. State, 480 S.W.2d 680, 682 (Tex. Crim. App. 1972). A clear
application of this rule appears in Johnson v. State, 629 S.W.2d 953 (Tex. Crim. App. 1982),
where the court stated:
In his petition for discretionary review, appellant contends that the
prosecutor committed fundamental error in his argument to the jury when he
directly alluded to the appellant's failure to testify. The Court of Appeals [at 630
S.W.2d 291] concluded that the complained of argument did not constitute a
comment on appellant's failure to testify. A concurring opinion, filed by Associate
Justice John Vance, concluded that the complained of argument was necessarily a
reference to appellant's failure to testify. However, the concurring Justice noted
that the appellant did not specifically object to the prosecutor's comment.
Therefore, nothing was presented for review.
We have examined the record on appeal and agree with the concurring
opinion.
629 S.W.2d at 954.
Cases such as Montoya v. State, 744 S.W.2d 15 (Tex. Crim. App. 1987), and
Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981), which require a determination of
whether the prosecutor's comment could have been cured by an instruction to disregard, are not
controlling; they involve situations where the defendant's counsel moved for a mistrial without
first requesting the trial court to instruct the jury to disregard the improper comment, thereby
raising the issue of whether the granting of an instruction to disregard would have been a futile
gesture.
In the present case, although we are unable to say that a perfunctory limiting
instruction definitely would have cured the harm from the prosecutor's argument, we also cannot
say that a particularly strong limiting instruction could not have done so. Indeed, Davis v. State,
645 S.W.2d 817, 819 (Tex. Crim. App. 1983), stands squarely for the proposition that an
especially severe and attention-grabbing instruction to disregard can cure the harm from repeated
violations of article 38.08. See also Bower v. State, 769 S.W.2d 887, 907 (Tex. Crim. App.
1989). Accordingly, because we conclude that an instruction to disregard might have cured the
harm, we would reach the same result here even if we applied the Montoya test of curability.
We overrule appellant's first point of error.
EVIDENCE OF PRIOR CONVICTION
In his second point of error, appellant asserts that the evidence was insufficient to
show "finality" as to one of the two prior convictions the State successfully used to obtain an
enhanced sentence. Tex. Penal Code Ann. § 12.42(b) (West 1974). Appellant correctly states
that it is the State's burden to make a prima facie showing that a prior conviction offered for
enhancement was final before the commission of the primary offense. Diremiggio v. State, 637
S.W.2d 926, 928 (Tex. Crim. App. 1982). The State offered into evidence a "pen packet," one
part of which indicates that on April 28, 1977, some fourteen years before the commission of the
primary offense, appellant was convicted of burglary of a building. This evidence was sufficient
to satisfy the State's initial burden. See Jones v. State, 711 S.W.2d 634, 635-36 (Tex. Crim.
App. 1986). The burden then shifted to appellant to show that the conviction was not final at the
time of the commission of the primary offense. Diremiggio, 637 S.W.2d at 928.
In an attempt to meet this burden, appellant points to a curious irregularity in the
pen packet relating to the burglary. The pen packet contains a statement from the Travis County
District Clerk attesting to the integrity of attached copies of various documents. Just above the
signature block appears the following statement: "I further certify that notice of appeal was not
given in this case and that an appeal has been perfected." These two assertions are mutually
exclusive, for as Rule 40 of the Rules of Appellate Procedure provides, "Appeal is perfected in
a criminal case by giving timely notice of appeal; except . . . in death penalty cases." Tex. R.
App. P. 40(b)(1). The dispositive issue on this point of error is whether the above-quoted text
establishes the existence of an appeal. If it does, the State would once again bear the burden, not
of proving the existence of a prior conviction, but rather of proving that any appeal was final
before the commission of the primary offense. We conclude that the district clerk's statement
does not provide evidence of the existence of an appeal.
In Johnson v. State, 784 S.W.2d 413, 414 (Tex. Crim. App. 1990), the Court of
Criminal Appeals held that "[a]fter the State establishes that a defendant has been previously
convicted, this Court will presume that a conviction is final when faced with a silent record
regarding such." In the present case, the conflicting assertions contained in the district clerk's
certification amount, at best, to silence. Cf. Litton Indus. Products, Inc. v. Gammage, 668
S.W.2d 319, 324 (Tex. 1984) ("When circumstances are consistent with either of . . . two facts
and nothing shows that one is more probable than the other, neither fact can be inferred.").
Because the pendency of an appeal for fourteen years is unlikely, we would be authorized to infer
that the absence or completion of any appeal is more probable than that such an appeal was still
pending when the primary offense was committed. Under the present circumstances, however,
we need not and do not make such an inference; hence, the record is effectively silent as to the
existence of an appeal. In accordance with Johnson, therefore, we presume the burglary
conviction was final.
We overrule appellant's second point of error.
For the foregoing reasons, we affirm the judgment of the district court.
J. Woodfin Jones, Justice
[Before Chief Justice Carroll, Justices Jones and Kidd]
Affirmed
Filed: December 9, 1992
[Publish]
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gilbreath
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-024-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY,
APPELLANT
vs.
JAMES GILBREATH,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 91-6202, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING
The Texas Department of Public Safety ("the DPS") appeals the judgment of the
trial court issuing a writ of mandamus ordering the DPS to produce certain information James
Gilbreath requested under the authority of the Texas Open Records Act, Tex. Rev. Civ. Stat.
Ann. art. 6252-17a (West Supp. 1992) (1) ("the Act"). We will affirm the judgment of the trial
court.
STATUTORY AND PROCEDURAL BACKGROUND
This dispute requires this Court to interpret sections 3(a)(11) and 8(a) of the Act,
which provide as follows:
Sec. 3. (a) All information collected, assembled, or maintained by or for
governmental bodies . . . in connection with the transaction of official business is
public information and available to the public during normal business hours of any
governmental body, with the following exceptions only:
* * *
(11) inter-agency or intra-agency memorandums or letters which would not be
available by law to a party in litigation with the agency;
* * *
Sec. 8. (a) If a governmental body refuses to request an attorney general's decision
as provided in this Act, or to supply public information or information which the
attorney general has determined to be a public record, the person requesting the
information or the attorney general may seek a writ of mandamus compelling the
governmental body to make the information available for public inspection.
Art. 6252-17a, §§ 3(a)(11), 8(a).
The facts are not in dispute. On February 5, 1991, pursuant to the Act, James
Gilbreath requested information from the Texas Department of Public Safety that it relied upon
in not selecting Gilbreath for the position of Texas Ranger in November 1989 and November
1990. Gilbreath requested disclosure of all documents pertaining to his application, testing,
interview and consideration for selection, including the subjective, narrative evaluations made
specifically as a result of Gilbreath's oral interview. Through a letter dated February 15, 1991,
the DPS provided a portion of the requested information, but told Gilbreath that it was
withholding certain other information until it received an opinion from the Texas Attorney
General's Office regarding whether the information was subject to disclosure.
On March 26, 1991, the attorney general issued an informal letter ruling, Texas
Att'y Gen. OR91-149 (1991), advising the DPS that background evaluations and subjective
evaluations of an applicant's performance before an interview board were exempt from disclosure
under section 3(a)(11) ("Exemption 11") of the Act, and that the test questions used by the DPS
in its evaluation of Texas Ranger candidates were exempt from disclosure under section 3(a)(22). (2)
Accordingly, the DPS declined to release the remainder of the requested information.
Dissatisfied with the attorney general's determination, on May 2, 1991, Gilbreath
sought a writ of mandamus pursuant to section 8(a) of the Act to compel disclosure of the
withheld information. Gilbreath sought the subjective evaluations that were completed during his
oral interviews and any background evaluations that the DPS relied upon during the interviews.
Gilbreath also sought recovery of his costs and reasonable attorney's fees.
The DPS opposed issuance of the writ. It argued that the trial court lacked
jurisdiction over the dispute because Gilbreath had no statutory authority to file suit.
Furthermore, the DPS asserted that mandamus would be an improper remedy because it had
neither violated a clear legal duty to release the information nor abused its discretion in refusing
to supply the information. The case was tried before the trial court on stipulated facts.
Significantly, stipulated fact seven stated: "[i]f the Department of Public Safety were involved
in civil litigation over James Gilbreath's application, the information withheld would be available
through civil discovery." The parties also stipulated to the amount of reasonable attorney's fees
recoverable if Gilbreath prevailed on his petition.
After reviewing the entire record, the trial court found that Gilbreath had exhausted
his administrative remedies under the Act and that the DPS had failed to supply public
information. The court found this action to be a violation of the agency's clear duty to produce
the information pursuant to the Act. Therefore, the trial court issued a writ of mandamus ordering
the DPS to disclose the withheld information and to pay Gilbreath's reasonable attorney's fees.
The DPS appeals the order of the trial court.
DISCUSSION
The DPS brings three points of error. First, it challenges the jurisdiction of the
trial court and asserts the trial court had no authority to issue a writ of mandamus in this dispute.
Second, the DPS contends that, even if the trial court had authority to issue the writ, mandamus
was not proper because the agency did not violate a "clear duty" imposed by law or abuse its
discretion in relying on the attorney general's open records decision. Third, it maintains that the
trial court's interpretation of Exemption 11 is flawed.
In its first point of error, the DPS challenges the trial court's jurisdiction and claims
the Act does not authorize mandamus when the attorney general has ruled the information is not
a public record. The DPS contends that once the attorney general makes a decision as to the
classification of information under the Act, that decision may not be challenged in a court of law.
We disagree.
Section 8(a) confers upon the trial court authority to issue a writ of mandamus in
three circumstances: where a governmental body (1) refuses to request an attorney general's
decision as to whether information is public record, (2) refuses to supply public information, or
(3) refuses to supply information that the attorney general has determined to be a public record.
Art. 6252-17a, § 8(a). The fact that the attorney general determined this information was not a
public record did not preclude Gilbreath from seeking a trial court's determination as to whether
the information sought was public information within the meaning of section 3(a). Although it
may appear that the terms "public information" and "public record" are interchangeable, they have
distinct meanings. City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316, 322-23 (Tex. App.--Houston [1st Dist.] 1984, no writ).
A person seeking disclosure of information usually begins the process by requesting
the information from the governmental body directly. If it is public information or information
that the attorney general has previously determined to be a public record, the governmental body
must disclose it. If the agency refuses to do so, the person requesting the information may initiate
a mandamus proceeding to compel disclosure.
Where there is a dispute as to the nature of the information, the person seeking
disclosure has two alternatives. He may either compel the governmental body to request an open
records decision from the attorney general or he may simply seek disclosure of the information
that he believes is public information through a mandamus proceeding in a court of law. If the
latter form of relief is sought, the trial court determines whether the information requested is
public information subject to disclosure under the Act. As we read the statute, there is no
requirement that the attorney general issue an open records decision before a person may seek a
mandamus to compel the disclosure of public information.
If the agency has requested an open records decision (on its own initiative or
because of a mandamus proceeding) and the attorney general decides that the information is a
public record, the agency must disclose the information. However, if the attorney general decides
that the information is not a public record, the person seeking such information is not precluded
from petitioning the court for a writ of mandamus. In such a case, the person may seek a judicial
proceeding to determine whether the information is subject to disclosure. See, e.g., Houston
Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th
Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). That was the situation
in which Gilbreath found himself, and thus it was proper for him to petition for a writ of
mandamus.
Having determined that Gilbreath's mandamus proceeding is proper, we are asked
to address the argument that Gilbreath's suit constitutes an appeal of an adverse attorney general
open records decision, and that such an appeal is prohibited. The DPS maintains that section 8(a)
does not authorize a private citizen to file suit to compel disclosure of information that the
attorney general has determined is not a public record. We disagree. Under such an
interpretation of the Act, an adverse attorney general's decision would never be subject to judicial
review. We believe the clear legislative intent of the Act reflects a contrary view. Just as the
refusal of the attorney general to render a decision under the Act is subject to review by the
courts, Houston Chronicle Publishing Co. v. Mattox, 767 S.W.2d 695, 698 (Tex. 1989, orig.
proceeding), once the attorney general renders a decision under the Act, that decision is also
subject to judicial review.
Gilbreath sought mandamus to compel the DPS to disclose information he
considered to be public within the meaning of the Act. Because he has the right to do this
pursuant to section 8(a), we overrule point of error one.
In its third point of error, the DPS contends the trial court erred in its interpretation
of the Act, specifically Exemption 11. The DPS is of the opinion that Exemption 11 is
independent of the rules of civil discovery and although a record might be discoverable in civil
litigation it might not be subject to disclosure under the Act. Consequently, the DPS stipulated
that if it was in litigation with Gilbreath the information would be discoverable.
Section 3(a) provides that all information in the possession of a governmental
agency is public information unless specifically exempted from disclosure. As such, when a
person requests information from a governmental body, it must supply the information unless one
of the twenty-three specific exemptions provided in section 3(a) exempts the information from
disclosure. Art. 6252-17a, § 3(a).
In its informal letter ruling to the DPS, the attorney general's office stated that it
considered the information at issue to be protected from disclosure solely under Exemption 11.
While such opinions are to be given great weight, they are not binding upon a court of law.
Houston Indep. Sch. Dist. v. Houston Chronicle Publishing Co., 798 S.W.2d 580, 588 (Tex.
App.--Houston [1st Dist.] 1990, writ denied).
Exemption 11 exempts from public disclosure "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party in litigation with the
agency." Art. 6252-17a, § 3(a)(11). This exemption is intended to protect advice and opinions
on policy matters and to encourage frank and open discussion within the agency in connection
with its decision-making processes. Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex.
Civ. App.--San Antonio 1974, writ ref'd n.r.e.). However, the exemption is not an absolute
shield. Exemption 11 is to be construed in light of the Act's mandate that information regarding
the affairs of government and the official acts of those who serve the public be freely available
to all. Art. 6252-17a, § 1; Austin, 630 S.W.2d at 394.
Exemption 11 is modeled after section 552(b)(5) ("Exemption 5") of the federal
Freedom of Information Act, which protects "inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the
agency." 5 U.S.C. § 552(b)(5) (1988). (3) Exemption 5 incorporates what is referred to in federal
civil discovery practice as the "deliberative process privilege." See Dow Jones & Co. v.
Department of Justice, 917 F.2d 571, 573 (D.C. Cir. 1990). The attorney general has
consistently interpreted Exemption 11 of the Act to parallel federal Exemption 5, Op. Tex. Att'y
Gen. No. H-436 (1974), and the DPS asks this Court to interpret Exemption 11 in the same
manner. When the legislature adopts a statute from another jurisdiction it is presumed that the
legislature intended to adopt the settled construction given to the statute by the courts of that
jurisdiction. State v. Wiess, 171 S.W.2d 848 (Tex. 1943). That presumption also applies when
the state adopts a federal statute. Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 72 (Tex.
App.--Austin 1990, no writ).
Federal Exemption 5 contemplates that public access to inter-agency and intra-agency memoranda and letters will be governed by "the same flexible, common-sense approach"
that governs discovery of such documents by private parties involved in litigation with
governmental bodies. Environmental Protection Agency v. Mink, 410 U.S. 73, 85-86 (1973).
The United States Supreme Court has described the interrelationship between the federal
exemption and the civil discovery process as follows:
Since virtually any document not privileged may be discovered by the appropriate
litigant, if it is relevant to his litigation, and since the [Freedom of Information]
Act clearly intended to give any member of the public as much right to disclosure
as one with a special interest therein [citations omitted], it is reasonable to construe
Exemption 5 to exempt those documents, and only those documents, normally
privileged in the civil discovery context.
National Labor Relations Bd. v. Sears Roebuck, Inc., 421 U.S. 132, 149 (1979) (emphasis
added). However, over the years various federal courts, including the United States Supreme
Court, have engrafted new exceptions upon Exemption 5. Through these decisions, the federal
courts have limited the scope of the Freedom of Information Act. (4) We decline to narrow the
scope of the Texas Open Records Act. Exemption 11 exempts those documents, and only those
documents, normally privileged in the civil discovery context. The language of Exemption 11 is
clear and unambiguous, and we will not read into the statute language that is not textually present.
The parties stipulated that, if they were in litigation, the information at issue would
be discoverable. By so stipulating, the DPS has admitted that there is no privilege, including a
deliberative process privilege, which protects the information from discovery. In other words,
these inter-agency or intra-agency memorandums or letters would be available by law to a party
in litigation with the agency. Thus, Exemption 11 does not apply, and the information is "public
information" as a matter of law. Accordingly, it is subject to disclosure. The policy behind the
Act, stated twice therein, that the statute should be "liberally construed" in favor of disclosure
supports this conclusion. Art. 6252-17a, §§ 1, 14(d). Accordingly, we overrule point of error
three.
Finally, in its second point of error, the DPS maintains that even if the trial court
has the authority to issue a writ of mandamus, it was issued improperly in this case. The DPS
contends that it has neither violated a "clear duty" imposed by law nor abused its discretion in
relying on and following the attorney general's open records decision. We think this argument
misses the mark. The DPS argues that Gilbreath must meet the requirements for a common law
writ of mandamus. In a common law cause of action, there are three requisites to a mandamus:
a legal duty to perform a non-discretionary act, a demand for performance of the act, and a refusal
to perform. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979, orig. proceeding). However,
section 8(a) creates a statutory writ of mandamus under which a requesting party need only show
that the governmental body has not complied with the Act in order to obtain mandamus. Rules
applicable to common law writs of mandamus may be helpful to determine whether the agency
has complied with the statute, but they are not dispositive. Section 8 must be viewed in light of
the legislative purpose and the statute's overall scheme. Industrial Found. of the South v. Texas
Indus. Accident Bd., 540 S.W.2d 668, 674 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
While the equities of an ordinary mandamus case are not at issue in an open records mandamus
action, the trial court may exercise equitable discretion to issue a writ of mandamus where
mandamus would further the overall scheme of the Act. Under the Act, the DPS is required to
supply public information to any person who may request such information. The trial court
determined that the requested documents were public information under the Act. The failure of
a governmental body to provide public information is a clear violation of a duty imposed by the
Act and, therefore, statutory mandamus is an appropriate remedy. City of Houston, 673 S.W.2d
at 320. We overrule point of error two.
The judgment of the trial court is affirmed in all respects.
Mack Kidd, Justice
[Before Chief Justice Carroll, Justices Jones and Kidd]
Affirmed
Filed: November 25, 1992
[Publish]
1. All statutory references are to Tex. Rev. Civ. Stat. Ann. art. 6252-17a (West Supp.
1992).
2. The test questions were not sought by mandamus, and thus the DPS's nondisclosure of
these questions is not an issue on appeal.
3. As originally adopted, state Exemption 11 protected "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than one in
litigation with the agency." Acts 1973, 63rd Leg., ch. 424, p. 1112. In 1989, the Texas
Legislature revised the exemption to its present form by eliminating the phrase "other than
one."
4. Currently under the federal Freedom of Information Act, if a document would be
"routinely" or "normally" discoverable upon a showing of relevance, it is not protected from
disclosure by federal Exemption 5. United States Dep't of Justice v. Julian, 486 U.S. 1, 12
(1988).
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IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-463-CR
CARLOS R. McHAZLETT,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
NO. 265,092, HONORABLE STEVE RUSSELL, JUDGE
This is an appeal from an order revoking probation. On September 12, 1986,
appellant waived trial by jury and entered a plea of nolo contendere to the information and
complaint charging him with driving while intoxicated. The trial court assessed appellant's
punishment at confinement for sixty days in the county jail and a fine of one thousand dollars.
The imposition of the sentence was suspended and the appellant was placed on probation for a
term of two years subject to certain probationary conditions.
On November 18, 1987, the State filed a motion to revoke probation alleging that
appellant had failed to report to his probation officer as directed, had failed to work faithfully at
suitable employment, had failed to complete eighty hours of community service, had failed to pay
court costs and fine, had failed to reimburse Travis County for the appointed counsel fee, and had
failed to pay his probation fee, all in violation of his probationary conditions. A capias issued for
appellant's arrest on December 2, 1987. The revocation motion was filed and the capias issued
within the two-year probationary period. The capias was executed on April 7, 1991, in San
Antonio, Bexar County, Texas.
On July 12, 1991, the trial court conducted a hearing on the motion to revoke
probation at which time the appellant entered a plea of "true." The trial court revoked probation
and imposed sentence. The motion for new trial was overruled by operation of law.
In his sole point of error, appellant contends that he "received ineffective assistance
of counsel at the time the motion to revoke probation was presented for hearing." A defendant
in a Texas criminal case is entitled to reasonably effective assistance of counsel. Wilkerson v.
State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940, (1987). In
Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held that in
order to show ineffective assistance of counsel, a convicted defendant must (1) show that his trial
counsel's performance was deficient, in that counsel made such serious errors he was not
functioning effectively as counsel; and (2) show that the deficient performance prejudiced the
defense to such a degree that the defendant was deprived of a fair trial. In this connection, a
strong presumption exists that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id. at 689. "Prejudice," however,
is demonstrated when the convicted defendant shows "a reasonable probability that but for
counsel's unprofessional errors, the results of the proceedings would have been different." Id.
at 694. A reasonable probability is a probability sufficient to undermine the confidence in the
outcome. Id.; Ex parte Guzmon, 730 S.W.2d 724, 733 (Tex. Crim. App. 1987).
The Strickland standard has been adopted in Texas for resolving allegations of
ineffective assistance of counsel under both the federal and state constitutions. Hernandez v.
State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); see also Washington v. State, 771 S.W.2d
537, 545 (Tex. Crim. App.), cert. denied, 492 U.S. 912 (1989); Holland v. State, 761 S.W.2d
307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). Whether the Strickland
standard has been met is to be judged by the "totality of the representation" rather than by isolated
acts or omissions of the trial counsel, and the test is applied at the time of the trial, not through
hindsight. Wilkerson, 726 S.W.2d at 548; see also Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.
Crim. App. 1990). The burden of proving ineffective assistance of counsel by a preponderance
of the evidence rests upon the convicted defendant. Moore v. State, 694 S.W.2d 528, 531 (Tex.
Crim. App. 1985). Allegations of ineffective assistance will be sustained only if they are firmly
founded. Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984), cert. denied, 471 U.S.
1061 (1985). The fact that another attorney might have pursued a different course of action at
trial will not support a finding of ineffectiveness. Walston v. State, 697 S.W.2d 517, 519 (Tex.
App.--San Antonio 1985, pet. ref'd). The particular facts and circumstances of each case must be
considered in any claim of ineffective assistance. Johnson v. State, 691 S.W.2d 619, 626 (Tex.
Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). The Strickland standard has never been
interpreted to mean that the accused is entitled to errorless or perfect counsel. Bridge v. State,
726 S.W.2d 558, 571 (Tex. Crim. App. 1986); see generally, Banks v. State, 819 S.W.2d 676,
681 (Tex. App.--San Antonio 1991, pet. ref'd).
With this background, we now consider appellant's claim of ineffective assistance
of counsel. A trial court is entitled to hold a hearing on the motion to revoke probation, even
after the defendant's term of probation has expired, as long as the revocation motion was filed and
a capias or arrest warrant issued before the expiration of the probationary term. Lack of due
diligence in attempting to apprehend the probationer and to hear and determine the allegations in
the revocation motion is not an affirmative defense that a probationer is required to prove by a
preponderance of the evidence. Once the defendant-probationer has properly raised and developed
the issue of a lack of due diligence, the burden shifts to the State to produce evidence that it made
a diligent effort to apprehend the defendant and to have a revocation hearing. See Rodriguez v.
State, 804 S.W.2d 516 (Tex. Crim. App. 1991); Langston v. State, 800 S.W.2d 553 (Tex. Crim.
App. 1990); Burch v. State, 821 S.W.2d 385 (Tex. App.--Waco 1991, no pet.); Hunter v. State,
820 S.W.2d 5 (Tex. App.--Austin 1991 no pet.). In each of the four cases cited, the defendant
timely raised the issue of due diligence on the part of the state in apprehending the defendant or
in holding the revocation hearing or both.
In the instant case, the trial court clearly had jurisdiction to conduct the revocation
hearing even though appellant's probationary term had expired. The revocation motion had been
filed and the capias issued before the expiration of the probationary term. Rodriguez, 804 S.W.2d
at 517; Burch, 821 S.W.2d at 387.
It is appellant's contention that his trial counsel was ineffective because he did not
timely raise the issue of lack of due diligence on the part of the State. (1) In two such contentions,
appellant urges that his trial counsel's failure to raise the issue and the failure to have a court
reporter present to take shorthand notes of the revocation proceedings prevented him from
presenting error on appeal. (2)
The record shows that appellant entered a plea of "true" to the allegations in the
revocation motion. Such a plea is alone sufficient to support a revocation order even if there is
only one probationary violation. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979);
Rivera v. State, 688 S.W.2d 659, 660 (Tex. App.--Corpus Christi 1985, no pet.). The formal
printed order of revocation reflects that evidence was heard at the revocation hearing. There is,
however, no statement of facts in the record. The burden is on the appellant to see that a
sufficient record is presented to show error requiring reversal. Tex. R. App. P. 50(d). The
appellant has filed an instrument entitled "Certificate of No Statement of Facts" to which is
attached an affidavit of the official court reporter of the trial court that he was not in attendance
at the revocation hearing and was not requested to take shorthand notes of the evidence offered.
Cf. Tex. R. App. P. 11, 53(m).
As is often the case when ineffective assistance of counsel is asserted on direct
appeal, we cannot say from the face of the record that counsel's performance was deficient. See
Hernandez, 726 S.W.2d at 57; Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992)
(Benavides, J. dissenting). We cannot tell whether appellant's trial counsel raised the issue of due
diligence on the part of the State or not. When the record is silent, we cannot assume that the trial
counsel made no investigation of the State's diligence in apprehending appellant and pursuing a
revocation hearing. See Hernandez, 726 S.W.2d at 57. Counsel may well have had no basis for
raising the issue. Counsel is not required to file futile motions or raise futile issues in order to
avoid a claim of ineffective assistance of counsel. Mooney v. State, 817 S.W.2d 693, 698 (Tex.
Crim. App. 1991).
Counsel's competence is presumed and a defendant must rebut this presumption by
proving that his attorney's representation was unreasonable under prevailing
professional norms and that the challenged action was not sound strategy.
Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 2588, 91 L. Ed. 2d
305, 325 (1986). A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. Because of the difficulties inherent in making
such evaluation we must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance i.e., the defendant must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065.
Mimiel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992).
Appellant has not rebutted the presumption of his trial counsel's competence.
Moreover, appellant has failed to prove that but for errors by his trial counsel the result of the
revocation hearing would have been different. See Solis v. State, 792 S.W.2d 95, 98-99 (Tex.
Crim. App. 1990). Appellant has not met the two-prong test of Strickland. Appellant is free,
however, to pursue his ineffectiveness claim by collateral attack where the facts surrounding trial
counsel's representation may be developed at a hearing. Appellant's point of error is overruled.
The order of revocation and the judgment of conviction is affirmed.
John F. Onion, Jr., Justice
[Before Justices Powers, Kidd and Onion*]
Affirmed
Filed: October 28, 1992
[Do Not Publish]
* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. Actually, appellant claims his trial counsel failed to raise an "obvious defense," relying upon
Hardman v. State, 614 S.W.2d 123 (Tex. Crim. App. 1981). In Rodriguez, 804 S.W.2d at
518-19, the Court of Criminal Appeals clarified Hardman and noted it had never held that lack
of due diligence was an affirmative defense which the defendant must prove by a preponderance
of the evidence. The matter is one of burden shifting which requires the State to come forward
with evidence of diligence once the defendant has raised and developed the issue at a revocation
of probation hearing.
2. These subcontentions are not briefed in accordance with Tex. R. App. P. 74(f) and present
nothing for review.
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181 Conn. 421 (1980)
TOWN OF BERLIN ET AL.
v.
FRANK SANTAGUIDA ET AL.
Supreme Court of Connecticut.
Argued April 9, 1980.
Decision released July 1, 1980.
COTTER, C. J., BOGDANSKI, PETERS, D. SHEA and DALY, JS.
A. L. Zwerdling, with whom were William Zeman and Joel Ellis and, on the brief, Michael T. Leibig, *422 for the appellant (defendant American Federation of State, County and Municipal Employees, AFCIO, et al.).
Michael J. Lombardo, assistant attorney general, and Carl R. Ajello, attorney general, for the appellants (named defendant et al.).
Edward Hickey, Jr., and Thomas A. Woodley, for the appellant (defendant International Association of Firefighters, AFL-CIO).
Gerald A. Heffernan, for the appellants (defendant Connecticut Council of Police Unions No. 15, American Federation of State, County and Municipal Employees, AFL-CIO, et al.).
George C. Hastings, with whom were Richard B. Cech and, on the brief, Barry K. Stevens, for the appellees (plaintiffs).
R. Theodore Clark, Jr., and John Romanow, filed a brief as amici curiae.
Jeffrey C. Pingpank filed a brief as amicus curiae.
PER CURIAM.
Eight Connecticut municipalities and John Barth, a private individual, resident, taxpayer and elector of the town of Plainville, which is not a party herein, commenced the present action seeking injunctive relief and a declaratory judgment determining the constitutionality of the compulsory binding arbitration provisions of Public Acts 1975, No. 75-570 entitled "An Act Concerning Binding Arbitration For Municipal Collective Bargaining Agreements" which amended various provisions of the Municipal Employees Relations Act (hereinafter MERA). General Statutes §§ 7-467 through 7-477. The case was submitted to the trial court on the following stipulation of facts: The plaintiff municipalities have employees represented *423 by employee organizations designated under MERA as exclusive representatives of municipal employees in collective bargaining. At the time the case was submitted to the trial court, the plaintiff municipalities and the town of Plainville had in effect collective bargaining agreements which had been negotiated with various employee organizations. These agreements contained provisions covering, inter alia, wages, hours of work and fringe benefits. Between the time the complaint was filed and the date judgment was rendered, several of the plaintiff municipalities had engaged in compulsory binding arbitration pursuant to the statutory provisions challenged herein, although none of the awards had been confirmed by the court. After concluding that the plaintiffs had standing to maintain the action and that a justiciable controversy was presented, the trial court found the issues for the plaintiffs, rendered judgment declaring the compulsory binding arbitration provisions of Public Acts 1975, No. 75-570 violative of both the Connecticut and United States constitutions and granted the injunctive relief requested by the plaintiffs. This appeal by the defendants followed.
A preliminary question raised by the defendants is whether the plaintiffs have standing to challenge the constitutionality of a legislative enactment. "The `fundamental aspect of standing ... [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated.' Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947." Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497. "When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication *424 of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action has invaded." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726.
We deal first with the issue of standing as it pertains to the plaintiff municipalities. It has been recognized as a general rule[1] that "[t]owns... are creatures of the state, and though they may question the interpretation, they cannot challenge the legality, of legislation enacted by their creator. New Haven v. New Haven Water Co., 132 Conn. 496, 513, 45 A.2d 83; Sanger v. Bridgeport, 124 Conn. 183, 188, 198 A. 746." Waterford v. Connecticut State Board of Education, 148 Conn. 238, 245, 169 A.2d 891; Windsor v. Windsor Police Department Employees' Assn., Inc., 154 Conn. 530, 539, 227 A.2d 65. An exception to this rule has been carved out to allow a municipality, adversely affected by a statute, which is properly in court on a nonconstitutional question to challenge the constitutionality of that statute. Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 425 A.2d 576; Hillier v. East Hartford, 167 Conn. 100, 355 A.2d 1; Tough v. Ives, 162 Conn. 274, 294 A.2d 67; Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318. The present case does not fall within this exception since the sole issue presented herein is the *425 constitutionality of Public Acts 1975, No. 75-570; there are no nonconstitutional issues raised in this case. It is also significant to note that in the cases establishing the exception to the municipality standing rule, the municipalities were in court as defendants whereas in the present case they are the plaintiffs.[2] The plaintiff municipalities do not offer, nor do we see any compelling justification for further eroding the rule denying a municipality standing to challenge the constitutionality of legislation enacted by its creator.
Regarding the standing of Barth, it has been established that in a suit for declaratory judgment "[o]nly members of a class whose constitutional rights are endangered by a statute may ask to have it declared unconstitutional. Connecticut Light & Power Co. v. Southbury, 95 Conn. 242, 246, 111 A. 363. One who is not injured by the operation of a law cannot be said to be deprived by it either of constitutional right or of property. Windsor v. Whitney, 95 Conn. 357, 367, 111 A. 354. No taxpayer is entitled to seek by declaratory judgment the construction of a statute if the effect of that construction will not affect his personal rights. Liebeskind v. Waterbury, 142 Conn. 155, 159, 112 A.2d 208; McGee v. Dunnigan, 138 Conn. 263, 266, 83 A.2d 491; see also Benson v. Housing Authority, 145 Conn. 196, 204, 140 A.2d 320." Coyle v. Housing Authority, 151 Conn. 421, 424, 198 A.2d 709. In Ducharme v. Putnam this court cited with approval Flast v. Cohen, supra, and stated (p. 138) that "an individual taxpayer can sue so long as he can show how he, as distinguished from taxpayers in general, *426 is constitutionally affected by the provision attacked." See also Belford v. New Haven, 170 Conn. 46, 53, 364 A.2d 194. The plaintiffs, however, stipulated that Barth would not be and has not been affected by the operation of the legislation challenged herein in a manner distinguishable from its effect, if any, on other Plainville electors or taxpayers generally. The plaintiffs' claim that Barth has standing as an elector alleging a deprivation of his right to an effective vote is similarly without merit. The challenged statute places no infringements upon his right to vote of a type that would confer standing to maintain this action.
There is error, the judgment is set aside and the case is remanded to the trial court with direction to dismiss the action.
NOTES
[1] In Williams v. Mayor, 289 U.S. 36, 40, 53 S. Ct. 431, 77 L. Ed. 1015, the United States Supreme Court stated: "A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." See also City of New York v. Richardson, 473 F.2d 923 (2d Cir.), cert. denied, 412 U.S. 950, 93 S. Ct. 3012, 37 L. Ed. 2d 1002; Athanson v. Grasso, 411 F. Sup. 1153 (D. Conn.).
[2] We are not presented with nor do we express an opinion concerning circumstances in which a municipality, as a defendant, relies, as a defense, solely on the asserted unconstitutionality of a statute.
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623 F. Supp. 1114 (1985)
Phyllis ROTERT
v.
JEFFERSON FEDERAL SAVINGS AND LOAN ASSOCIATION.
Civ. No. N-84-300(JAC).
United States District Court, D. Connecticut.
December 13, 1985.
*1115 Eugene N. Sosnoff, New Haven, Conn., for plaintiff.
Paul E. Knag, Hartford, Conn., for defendant.
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JOSÉ A. CABRANES, District Judge:
This action alleging wrongful discharge from employment is before the court on the defendant's motion for summary judgment.[1] The defendant asserts *1116 that the plaintiff's federal claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, is precluded by the doctrine of collateral estoppel based on a prior administrative decision adverse to the plaintiff that ultimately was affirmed by a state court.
I.
Phyllis Rotert ("the plaintiff") was employed by the Jefferson Federal Savings and Loan Association ("the defendant") from April 1958 to October 1982. Complaint (filed May 9, 1984) at ¶¶ 5-6. Her final position was as a "mortgage processing officer" assigned to the defendant's Meriden, Connecticut, office. Id. at 7.
The 59-year-old plaintiff was informed by her superiors, on or about October 7, 1982, that her duties had been changed to those of a "loan consultant" and that she would thereafter be assigned to the defendant's office in Wallingford, Connecticut. Id. at 10. She was advised that her title and salary would remain the same and that she would be compensated for her travel expenses. Statement of Material Facts in Support of Defendant's Motion to Dismiss (filed June 21, 1984) ("Statement") at ¶ 2. The plaintiff's duties at the Meriden office were to be assigned to a younger employee. Complaint at ¶ 12. The plaintiff, after protesting the change in her duties and location, terminated her employment with the defendant on or about October 7, 1982. Statement at ¶ 4.
The plaintiff subsequently filed a claim for unemployment compensation with the Employment Security Division of the Connecticut Department of Labor ("the Division"). An examiner designated by the Administrator of the Division evaluated the plaintiff's claim and found her ineligible for unemployment benefits. Id. at ¶ 5.
The plaintiff's appeal from the examiner's decision was heard by an appeals referee on or about February 1, 1983. Id. at ¶ 6. The appeals referee upheld the denial of benefits on the ground that the plaintiff had left suitable work voluntarily and without sufficient cause. Id. The decision was again affirmed by the Employment Security Board of Review on March 24, 1983, and by the Superior Court of Connecticut on October 31, 1983. Id. at ¶¶ 7-10. See Rotert v. Administrator, Employment Security Fund, Docket No. 32-74-45, slip op. at 3 (Super.Ct., Jud.Dist. of New Haven, Oct. 31, 1983). The plaintiff did not appeal the decision of the Superior Court. Statement at ¶ 11.
The plaintiff filed her complaint in this action on May 9, 1984, alleging that the defendant had engaged in unlawful age discrimination by attempting to transfer her to a new position and thereby forcing her to terminate her employment. The plaintiff contended that these actions by the defendant constituted a constructive discharge.
The defendant subsequently filed a motion to dismiss and an accompanying memorandum, asserting that the plaintiff's federal claim was barred by the doctrine of collateral estoppel based on the decision of the Division that ultimately was affirmed by the state Superior Court.[2] The plaintiff counters that the doctrine of collateral estoppel is not applicable in these circumstances because "the subject of age discrimination and the other claims for relief were never mentioned or otherwise dealt with" in the earlier proceedings. See Plaintiff's Brief in Opposition to Motion to Dismiss (filed Sept. 7, 1984) at 1. Oral argument *1117 on the defendant's motion was thereafter heard by the court. Accordingly, the matter is now ripe for decision.
II.
A federal court is required by 28 U.S.C. § 1738 to afford the same full faith and credit to state court judgments as would the state's own courts. See, e.g., Kremer v. Chemical Construction Corporation, 456 U.S. 461, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982) (federal court must give preclusive effect in Title VII suit to state court decision upholding state administrative agency's rejection of employment discrimination claim as meritless when state court decision would be res judicata in state's own courts). Consequently, the court in Knox v. Cornell University, 30 EPD ¶ 33,353 (N.D.N.Y. July 14, 1982) (Miner, J.), found that the decision of a state unemployment referee, upheld by a state court, that the plaintiff "lost his employment as a direct result of his own misconduct" would have precluded the plaintiff from relitigating the reason for his termination in a state employment discrimination suit and therefore would also preclude his relitigating that issue in his federal Title VII suit.
It appears that the Connecticut courts have never considered whether issues decided by the Division, and affirmed on appeal by the Superior Court, may be relitigated in a subsequently filed lawsuit alleging employment discrimination. Accordingly, the court must attempt to predict how the Connecticut courts would rule on this issue in light of their prior pronouncements on the doctrine of collateral estoppel. See generally Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 1782, 18 L. Ed. 2d 886 (1967) (federal district courts that are required to apply state law must, in the absence of a ruling on the subject by the state's highest court, "apply what they find to be the state law after giving `proper regard' to relevant rulings of other courts of the state").
The Connecticut Supreme Court has observed that
[c]ollateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties on a different claim.
In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983), citing State v. Aillon, 189 Conn. 416, 424 n. 8, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). See also Corey v. Avco-Lycoming Division, 163 Conn. 309, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973) (arbitrator's decision that employer had not discriminated against employee because of her religion precluded employee from relitigating that issue in administrative proceedings under state Fair Employment Practices Act).
Accordingly, the plaintiff's ADEA claim ought to be dismissed on the basis of collateral estoppel only if three conditions are satisfied: (1) an issue that is potentially determinative of the current claim must have been "actually litigated" in the earlier proceedings; (2) that issue must have been necessary to the outcome of the earlier proceedings; and (3) the earlier proceedings must have involved the same parties or those in privity with them. It is not disputed that the third criterion is satisfied in this case, because the same parties are involved in this action as were involved in the state proceedings.
III.
The ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The complaint contends that the defendant violated the ADEA both by constructively discharging the plaintiff and by altering the "terms, conditions, or privileges" of her employment *1118 in transferring her from one position to another. These two contentions will be considered seriatim.
A.
Our Court of Appeals held in an earlier ADEA action that "[a] constructive discharge occurs when the employer, rather than acting directly, `deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation.'" Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (Winter, J.), quoting Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 144 (5th Cir.1975).
It is clear that the issue of whether the plaintiff's working conditions had been rendered "so intolerable that [she was] forced into an involuntary resignation" was "actually litigated" in the state proceedings. For example, the opinions of the appeals referee and the Superior Court make reference to the defendant's representations that the plaintiff's title and salary would remain unchanged after the transfer as well as to the plaintiff's objections that the transfer would require her to commute a longer distance to work and to report to persons who previously had been her equals or subordinates.
The appeals referee, the Employment Security Board of Review and the Superior Court all concluded on the basis of such evidence that the plaintiff was not entitled to unemployment compensation, because "the change of jobs by the plaintiff was not a substantial deviation from her existing employment, and therefore there was no substantial and materially disadvantageous change to justify the plaintiff's termination of her employment." Rotert v. Administrator, Unemployment Compensation Act, supra, slip op. at 2. This conclusion is tantamount to a finding by the Division, affirmed on appeal by the Superior Court, that the defendant did not constructively discharge the plaintiff by "deliberately make[ing] [her] working conditions so intolerable that [she was] forced into an involuntary resignation."
The result reached by the state tribunals in this case is consistent with the result reached by our Court of Appeals in Pena v. Brattleboro Retreat, supra, 702 F.2d at 325, which held that an ADEA claimant had not been constructively discharged when she resigned following a change in her job responsibilities without any reduction in pay or change in title. See also Frazer v. KFC National Management Company, 491 F. Supp. 1099, 1105 (M.D.Ga. 1980), aff'd without opinion, 636 F.2d 313 (5th Cir.1981) (holding that the ADEA "is not intended to prevent employers from changing the job responsibilities of their 40 to 65 [now 70] year old employees ... [nor] to give 40 to 65 [now 70] year old employees the right to walk out and sue their employer because they dislike their changed job responsibilities").
There is no indication in the record that the plaintiff was prevented from fully litigating this issue in the state proceedings. Indeed, the plaintiff was represented by counsel at the state administrative hearing and at later stages of her appeal, see Affidavit of Kathryn Sniffin, Exhibit A (Decision of Appeals Referee) (filed June 21, 1985), and was afforded by law an opportunity to call witnesses, to introduce evidence and to present legal arguments in her behalf. See, e.g., C.G.S. §§ 31-242 (Referee's Hearing of Claim on Appeal from Examiner), 31-244a (Procedure on Appeals), 31-245 (Authority to Administer Oaths and Issue Subpoenas), 31-246 (Enforcement of Subpoena), 31-247 (Witness Fees). The plaintiff could have sought to introduce additional evidence or testimony in appealing the referee's decision to the Board of Review upon a showing that "the ends of justice so require." See Plaintiff's Exhibit E (filed Sept. 7, 1984) (Appeal to Board of Review).
Furthermore, a consideration of the issue of constructive discharge was clearly necessary to the determination reached in the state proceedings. The Connecticut Unemployment Compensation Law, C.G.S. § 31-236(2)(A), provides that an individual shall *1119 be disqualified from receiving unemployment benefits if it is found that
he has left suitable work voluntarily and without sufficient cause connected with his work, provided no individual shall be ineligible for benefits if he leaves suitable work for cause, including leaving as a result of changes in conditions created by his employer.
Consequently, a finding that the plaintiff had been forced to leave her job involuntarily "as a result of changes in conditions created by [her] employer" would have reversed the outcome of the state proceedings.
The court therefore holds that the plaintiff is precluded by the doctrine of collateral estoppel from asserting in this action that she was constructively discharged from her employment at the Jefferson Federal Savings and Loan Association.
B.
The plaintiff seeks to escape the preclusive effect of collateral estoppel by contending that, even if one assumes for the argument that the validity of her claim of constructive discharge was "actually litigated and necessarily determined" in the state proceedings, the issue of her allegedly discriminatory transfer from one position to another was not. The court concludes that the plaintiff cannot state a claim under the ADEA even if the alleged discriminatory transfer ought to be treated as an issue separate and distinct from the alleged constructive discharge.
It is axiomatic that a plaintiff can state a claim for relief under the ADEA only by establishing that she suffered a materially adverse change in the terms or conditions of her employment as a result of her employer's discriminatory conduct. See 29 U.S.C. § 621(a)(1) (emphasizing that the ADEA was designed to promote the interests of older workers who had lost jobs or suffered similar "disadvantage[s]" in their efforts to retain employment).
In other words, the ADEA was intended by the Congress, and has been applied by the courts, to provide a cause of action for older workers whose employers or potential employers fired them, refused to hire them or to recall them from layoffs, denied them promotions, salary increases or fringe benefits, or otherwise caused them some tangible injury on account of their age. See, e.g., Equal Employment Opportunity Commission v. Borden's, Inc., 724 F.2d 1390 (9th Cir.1984) (denial of severance pay); Equal Employment Opportunity Commission v. Westinghouse Electric Corporation, 725 F.2d 211 (3rd Cir.1983), cert. denied, ___ U.S. ___, 105 S. Ct. 92, 83 L. Ed. 2d 38 (1984) (denial of "layoff income and benefits"); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981) (termination of employment); Equal Employment Opportunity Commission v. Sandia Corporation, 639 F.2d 600 (10th Cir.1980) (discriminatory layoff policy); Houghton v. McDonnell Douglas Corporation, 553 F.2d 561 (8th Cir.1977), cert. denied, 434 U.S. 966, 98 S. Ct. 506, 54 L. Ed. 2d 451 (1977) (reassignment and reduction in salary followed by discharge for protesting discrimination). The ADEA was never intended to serve as a vehicle for litigating changes in duties or working conditions that cause no materially significant disadvantage to the older employee.
The plaintiff in this action, having been precluded from denying that she left her job voluntarily and without sufficient cause prior to the proposed transfer, cannot claim to have suffered any tangible harm incident to the transfer that is potentially compensable under the ADEA. For example, she cannot establish that she incurred any additional costs or experienced any diminution in her salary, benefits or working conditions as a result of a reassignment that she never accepted. Cf. Pena v. Brattleboro Retreat, supra, 702 F.2d at 325 (denying ADEA claim by plaintiff who was faced with change in job responsibilities without loss of pay or change in title); Frazer v. KFC National Management Company, supra, 491 F.Supp. at 1105 (stating that the ADEA was not intended to provide older workers with a *1120 cause of action merely for a change in their job responsibilities); Cowen v. Standard Brands, Inc., 572 F. Supp. 1576, 1581-1582 (N.D.Ala.1983) (holding that employee who declines employer's offer of transfer to comparable job at same salary but different location relinquishes claim to back wages, liquidated damages and equitable relief under ADEA).
Moreover, the ADEA would not permit the plaintiff to recover either punitive damages or compensatory damages for the emotional pain and suffering that she allegedly suffered as a result of the defendant's actions. See Johnson v. Al Tech Specialties Steel Corporation, 731 F.2d 143, 146-148 (2d Cir.1984) (Kaufman, J.) (holding that employee who failed to document any claim for lost wages due to employment discrimination could not recover compensatory damages for emotional distress or punitive damages under the ADEA).
The Court of Appeals in Borque v. Powell Electrical Manufacturing Company, 617 F.2d 61 (5th Cir.1980) (Johnson, J.), considered the damages available to a plaintiff who unsuccessfully alleged that she had been constructively discharged from her former position as a result of employment discrimination. The plaintiff in that Title VII action contended that her employer had forced her to resign by paying her a lower salary than had been paid to male employees performing the same job. The trial court rejected the plaintiff's claim of constructive discharge but found that the defendant had violated Title VII by paying a reduced salary to the plaintiff. In affirming the district court, the Court of Appeals held that the plaintiff could recover back wages to compensate for the wage disparity only from the time of her hiring for the job until the time of her resignation. She was not allowed to recover lost wages for the period following her resignation until she obtained alternative permanent employment. The plaintiff in the instant case, like the plaintiff in Borque, cannot recover damages for the period following her voluntary resignation; however, this plaintiff, unlike her counterpart in Borque, suffered no damages prior to her resignation that might be recoverable in this action.
Finally, the plaintiff is precluded from asserting that she would have suffered compensable harm if she had not resigned from the defendant's employ but instead had accepted the proposed reassignment. The state Superior Court, in affirming the decision of the Division, held that the transfer would cause no "materially disadvantageous change" in the terms, conditions or privileges of the plaintiff's employment. See Rotert v. Administrator, Unemployment Compensation Act, supra, slip op. at 2. As noted above, this issue was "actually litigated" in the state proceedings and was "necessary to the outcome" of those proceedings.
Consequently, this court is precluded from considering the plaintiff's claim of wrongful transfer, as well as her claim of constructive discharge, because of the determinations reached in the prior state proceedings. Count One of the plaintiff's complaint therefore must be dismissed.
C.
The plaintiff also seeks to hold the defendant liable under state law for breach of an employment contract and breach of an implied covenant of good faith and fair dealing. These pendent claims must be dismissed because they lack of an independent basis of subject matter jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966) ("Certainly, if the federal claims are dismissed before trial, ... the state claims should be dismissed as well."); Federman v. Empire Fire and Marine Insurance Co., 597 F.2d 798, 809 (2d Cir. 1979) ("Dismissal of the state claim is the recommended procedure ... in cases where the federal claim is disposed of prior to trial").
Conclusion
For the reasons stated above, all three counts of the plaintiff's complaint are hereby *1121 dismissed. Judgment for the defendant shall enter forthwith.
It is so ordered.
NOTES
[1] The defendant filed a motion to dismiss accompanied by an affidavit and a statement of material facts in support of defendant's motion to dismiss pursuant to Rule 9(c), Rules of Civil Procedure (D.Conn.). Because Rule 9(c) applies only to summary judgment motions and because both parties have introduced matters outside the pleadings, the court determined that the Motion to Dismiss ought to be treated as a motion for summary judgment under Rule 56, Fed.R.Civ.P.
[2] The defendant also contends that the plaintiff's state law claims must fail for the same reasons as must her federal claims and, alternatively, because they fail to state claims under state law and because the court ought not to exercise pendent jurisdiction over them.
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623 F. Supp. 1181 (1985)
Herman W. CARTY
v.
Paul N. CARLIN, et al.
Civ. A. No. N-84-4565.
United States District Court, D. Maryland.
December 18, 1985.
*1182 Stuart J. Snyder, Baltimore, Md., for plaintiff.
Peter Ward, Asst. U.S. Atty., D.Md., Baltimore, Md., and Charles F. Kappler, Asst. Regional Labor Counsel, U.S. Postal Service, for defendant.
MEMORANDUM
NORTHROP, Senior District Judge.
On December 19, 1984, the plaintiff Herman W. Carty filed the instant action against William F. Bolger (then Postmaster General of the United States) pursuant to the Rehabilitation Act, 29 U.S.C. § 791, alleging that he was discharged from his position at the Baltimore, Maryland, United States Postal Service because of a physical and mental handicap. On November 5, 1985, the defendant Postmaster General (now Paul N. Carlin) moved to dismiss the complaint, or in the alternative, for summary judgment. Fed.R.Civ.P. 12(b)(6) and 56. The plaintiff filed a motion to oppose dismissal or summary judgment on December 2, 1985. On December 11, 1985, the defendant replied to the plaintiff's opposition to dismiss or in the alternative for summary judgment.
After reviewing the memoranda and records in this case, the Court concludes that no hearing is necessary for decision in this matter. Local Rule 6. For the reasons set forth, the defendant's motion is GRANTED.
*1183 FACTS
The plaintiff first became employed by the Postal Service in 1966, as a part-time mail collector. In that same year he was stricken with a heart attack, was hospitalized, and as a result of his heart condition, was transferred to the special delivery unit of the Baltimore office of the Postal Service where he served as a messenger. Then, in April, 1979, Mr. Carty requested and was granted a transfer to the position of laborer custodian. In December, 1979, the plaintiff was hospitalized because he was suffering from severe depression.
On January 21, 1980, the plaintiff's treating physicians recommended to the Postal Service, that the plaintiff not return to his custodial duties because the work had a demoralizing influence upon him. They recommended that he should be assigned clerical work.
On January 30, 1980, Dr. Weckesser, another treating physician of the plaintiff's, issued a statement indicating that the plaintiff was suffering from chest pain of musculo-skeletal origin, esophageal hiatus hernia, and anxiety. On February 7, 1980, Dr. Georgina Y. Goodwin, medical officer of the United States Postal Service's Baltimore, Maryland, office, issued a medical statement addressed to the Director of Employee and Labor Relations stating that after reviewing the plaintiff's medical file and medical report, she concluded that the plaintiff was not able to perform his full duties as a laborer/custodian or any other position for which he may have been qualified. The plaintiff was then discharged from the Postal Service in February, 1980.
On March 20, 1980, the plaintiff filed a complaint with the Postal Service alleging, inter alia, discrimination because of his physical and/or mental handicap in that he had not been reassigned as required since his condition was caused by a job related injury, and that he had been discharged as a result of his physical and/or mental inability to perform the duties of a laborer/custodian, when he could in fact perform another job in the U.S. Postal Service in light of his physical and/or mental handicap. A formal investigation took place and a report was issued on October 22, 1980. The United States Postal Service then ruled on February 2, 1981, that no discrimination had occurred. A hearing was then conducted on May 7, 1981, at the plaintiff's request before an EEOC attorney-examiner. The hearing examiner issued his findings in August, 1981, concluding that the plaintiff was physically and/or mentally handicapped on February 7, 1980 due to a previous heart attack, nervous breakdown, and hernia; he further found that the United States Postal Service had not afforded the plaintiff a reasonable accommodation in violation of 29 C.F.R. § 1613.701. The hearing examiner recommended that the plaintiff be reinstated to the position of distribution clerk or any other position which he was able to perform in light of his physical and mental handicap. The hearing examiner further recommended that the plaintiff be given back wages from February 7, 1980 to the date of reinstatement.
After receiving the recommendation from the hearing examiner, the agency chose not to adopt the recommended findings of the hearing examiner, and issued its final decision, concluding that there had been no discrimination. The agency refused to reinstate the plaintiff and award the recommended back wages.
The plaintiff then filed an appeal to the Equal Employment Opportunity Commission, Office of Review and Appeals. On October 31, 1984, the Office of Review and Appeals issued a decision rejecting the recommended decision of its own hearing examiner and affirming the Postal Service's final decision, which found no discrimination based on a physical or mental handicap or age.
After properly exhausting his administrative procedures under 5 U.S.C. § 7153, the plaintiff then filed this action pursuant to 29 U.S.C. § 791.
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment *1184 shall issue only when the pleadings before the Court establish "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A government employee's right to a trial de novo in a discrimination suit does not necessarily preclude the granting of summary judgment. Jones v. U.S. Postal Service, 78 F.R.D. 196 (E.D.Mich.1978). The movant bears the burden "to demonstrate clearly that there is no genuine issue of fact, and any doubt as to the existence of such an issue is resolved against him." Phoenix Savings and Loan, Inc. v. Aetna Casualty & Surety Co., 381 F.2d 245 (4th Cir.1967); accord, Cole v. Cole, 633 F.2d 1083 (4th Cir.1980); 10A C. Wright and A. Miller & Kane Federal Practice and Procedure § 2727 (1983).
With these principles in mind, the Court turns to the merits of the pending motion. The essence of the defendant's argument is three fold. First, that the undisputed facts clearly indicate that, as a matter of law, the plaintiff is not a handicapped person under the terms of the Rehabilitation Act. Secondly, the defendant argues that the Postal Service had no duty to accommodate the plaintiff because he could no longer perform his duties as a laborer/custodian under any circumstances. Third, the Postal Service contends that the Rehabilitation Act does not require the Postal Service to reassign a handicapped worker as a reasonable accommodation. For purposes of clarity, each of the foregoing arguments will be addressed individually.
I. Is the plaintiff a handicapped person who is entitled to protection under the Rehabilitation Act?
Not all persons with disabilities are entitled to protection under the Rehabilitation Act. In order to assert a claim that one has been discriminated against because of a physical or mental handicap, he must satisfy the threshhold requirement that he is a handicapped person as defined by the statute. Jasany v. United States Postal Service, 755 F.2d 1244, 1248 (6th Cir.1985). The statute defines a handicapped person as one who "has a physical and/or mental impairment which substantially limits one or more of such person's major life activities." 29 U.S.C. § 706(7)(B)(i). Major life activities is defined in 29 C.F.R. § 1613.702(c) as "functions such as caring for oneself, performing, manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." There are thus two key elements to consider when determining whether one is handicapped according to the provisions of the Rehabilitation Act.
1. The person must have a physical and/or mental impairment; and
2. That impairment must substantially limit one or more of such person's major life activities.
It is undisputed by both parties, that Mr. Carty has a physical and mental impairment. The medical record indicates that he has a long line of medical and psychiatric treatment. There is evidence by the plaintiff's doctor that he cannot withstand prolonged heavy lifting without aggravating his existing hiatal hernia. The plaintiff's doctors have further indicated that the plaintiff suffers from manic depression, myocardial infraction with probable coronary artery disease.
The defendant argues that while the plaintiff has alleged that he suffers from physical and mental impairments, he has not presented a case alleging that the impairments substantially limited one or more of the plaintiff's major life activities. The defendants contend that since the plaintiff has alleged that his impairment does not preclude him from performing other jobs within the postal service, and that since he has not alleged that his impairments have restricted him ability to find work elsewhere, he has failed to allege that he was substantially limited by his impairment. The defendant relies on the case of Jasany v. U.S. Postal Service, supra, as its basis.
In Jasany, the plaintiff suffered from an eye condition (strabismus), commonly known as crossed eyes. Despite his condition, he was hired by the Postal Service as a distribution clerk machine trainee. His primary task in this position was to operate a mail sorting machine. After operating *1185 the mail sorting machine for three months, he began to develop eye strain, headaches, and excessive tearing. Doctors' reports indicated that his symptoms were due to the detailed visual work required to operate the machine coupled with his problems of strabismus. The Court of Appeals for the 6th Circuit held that he was not a "qualified handicapped person" within the meaning of the statute.
In the instant case, the parties stipulated that Jasany's condition had never had any effect whatsoever on any of his activities, including his past work listing and ability to carry out other duties at the post office apart from operation of the [mail sorting machine]. Based upon this stipulation and in light of our analysis of the statutory definition, we find that ... the appellant failed to establish a prima facie case of handicap discrimination. (at 1250).
In conclusion, the court in Jasany found that exclusion coupled with physical impairment from one particular job is not sufficient for a plaintiff to establish that the impairment substantially limits one or more of a person's major life activities.
While the Court agrees with the ruling in Jasany, the facts of the present case are somewhat distinguishable. In the present case, the plaintiff has shown that he suffers from a variety of impairments ranging from heart condition to severe depression. Although the plaintiff has stated that he can no longer perform the duties of a laborer/custodian, he has not suggested that his impairments only limit his ability to perform this one job.
In attempting to determine whether an impairment is so severe as to be considered substantially limiting employment potential, a number of factors need to be considered the number and type of jobs from which the impaired individual is disqualified, the geographical area to which the individual has reasonable access, and the individual's job expectations and training. E.E. Black. Ltd. v. Marshall, 497 F. Supp. 1088, 1100-01 (D.Hawaii 1980).
The plaintiff's complaint indicates that because of his state of severe depression, he could no longer perform as a laborer/custodian because the work had a demoralizing influence on him. He has also indicated that his physical impairments prevent him from doing tasks which entail prolonged heavy lifting. Although it is true that the plaintiff has stated that his impairments do not prohibit him from performing the job of a distribution clerk, he has not indicated that his then present position of a laborer/custodian is the only one he is incapable of performing.
This fact is to be distinguished from Jasany. In that case, the parties stipulated that Jasany's condition had never had any affect whatsoever on any of his activities, including his past work history and ability to carry out other duties apart from operation of the mail sorting machine. Id. at 1250.
The record in this case, however, does not disclose any such stipulation nor does the record clearly indicate that the parties are in agreement about the nature and severity of the plaintiff's condition.
Therefore, the Court cannot state, after examining the record in this case in a light most favorable to the plaintiff, that he does not meet the definition of a handicapped person under the law.
II. Is the plaintiff a "qualified handicapped person" as defined by the Act?
The defendant next suggests that even if the plaintiff were deemed to be handicapped, the Code of Federal Regulations reveals that under the facts of this case, the Rehabilitation Act offers him no remedy.
In analyzing claims brought by handicapped federal employees under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the courts have identified four distinct types of discriminatory barriers confronting handicapped persons seeking employment: (1) intentional discrimination for reasons of social bias against handicapped individuals; (2) neutral standards with disparate *1186 impact; (3) surmountable impairment barriers; and (4) insurmountable impairment barriers. Prewitt v. U.S. Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981); Bey Bolger, 540 F. Supp. 910, 925 (E.D.Pa.1982).
The duty of the employer to accommodate the handicapped worker attaches only when the employee asserts or claims that he was discharged or rejected for a position despite the fact that he would have performed the essentials of the job if afforded reasonable accommodation. Prewitt v. U.S. Postal Service, 662 F.2d at 305.
Section 1613.702(f) of the Equal Employment Opportunity Commission regulations defines a qualified handicapped person as follows:
A qualified handicapped person means with respect to employment, a handicapped person who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health of the individual or others. (Emphasis added).
The defendant claims that he had no duty to accommodate the plaintiff because the duty to accommodate only occurs when the plaintiff would be able to perform his duties given such accommodation.
The extent of an employer's duty as an employing federal agency to handicapped persons is set forth in the Code of Federal Regulations, 29 C.F.R. § 1613.701 et seq. In pertinent part, those regulations state:
Agencies shall give full consideration to the hiring, placement, and advancement of qualified mentally and physically handicapped persons. The Federal Government shall become a model employer of handicapped individuals. An agency shall not discriminate against a qualified physically or mentally handicapped person. (Emphasis added).
Given the facts of this case, it becomes clear that before the plaintiff can assert a charge of discrimination against the agency, he must first allege that he was otherwise qualified to perform the job for which he was discharged.
In Pushkin v. Regents and University of Colorado, 658 F.2d 1372 (10th Cir.1981), the court citing the Supreme Court's reasoning in Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980, stated that:
Under Davis the first test applied is whether the individual in question is qualified for the position in spite of his handicap. If the plaintiff's handicap would preclude him from doing the job in question, the plaintiff could not be found to be otherwise qualified.
Pushkin at 1387.
Once a person is deemed a qualified handicapped person, then the agency must attempt to reasonably accommodate that person according to the methods outlined in 29 C.F.R. § 1613.704:
(a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.
(b) Reasonable accommodation may include, but shall not be limited to: (1) making facilities readily accessible to and usable by handicapped persons; and (2) job restructuring, part-time or modified work schedules acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) the overall size of the budget; (2) the type of agency operation, including the composition and structure of the agency's work force; and (3) the nature and the cost of the accommodation.
In the instant case, the plaintiff has simply stated in his complaint that the defendant has "refused to assign him to light *1187 duty or to a job whose duties plaintiff could perform in light of his disabilities...." The complaint, on its surface, therefore, is unclear as to whether the plaintiff is alleging that the defendant had refused to attempt to modify his then present job in such way as to avoid heavy labor and a demoralizing effect, or whether the plaintiff was demanding transfer to a new job as his sole remedy.
The paramount issue then to be decided is whether the plaintiff could have successfully continued in his position as a laborer/custodian, given accommodations. After reviewing the entire record in this case, the Court concludes that the plaintiff, because of his impairment could no longer perform duties as a laborer/custodian under any circumstances.
Federal Rule of Civil Procedure 56(c) states in pertinent part: "[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions of fact, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
In determining whether there is a genuine issue as to any material fact, the Court may consider a variety of materials.
The formal issues framed by the pleadings are not controlling on a motion for summary judgment; the Court must consider the issues presented by other material offered by the parties on the motion to determine whether the Rule 56 request should be granted. Thus, the Court will examine the pleadings to ascertain what issues they present and then consider the affidavits, depositions, admissions, answers to interrogatories and similar material to determine whether any of the post-pleading material suggests the existence of any other triable genuiness issues of material fact.... Given this process the Court is obliged to take account of the entire setting of the case as a Rule 56 motion. In addition to the pleadings, it will consider all papers of record, as well as any material prepared for the motion that merits the standard prescribed in Rule 56(e). 10A Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2721 (1983).
After considering the entire record in this case, including the pleadings, memoranda, and pretrial statement[1] in this case, the Court concludes that the basis of the plaintiff's complaint is that his physical and mental disabilities rendered him incapable of performing his duties as a laborer/custodian and that he should have been reassigned to another position as an accommodation. The reasons for the Court's conclusion are set forth in the plaintiff's complaint, plaintiff's memorandum in opposition to summary judgment and plaintiff's proposed pretrial order:
1. Dr. Katze, plaintiff's psychiatrist, recommended to the defendant that plaintiff not return to custodial duties as this work had a demoralizing influence upon him.
2. Dr. Katze, plaintiff's doctor, recommended that the plaintiff resume clerical duties.
3. Dr. Koller, plaintiff's doctor, recommended that the plaintiff not return to his laborer/custodial duties, but rather be given clerical work.
4. Dr. Weckesser, plaintiff's doctor, saw no obstacle in plaintiff performing the duties of distribution clerk.
5. Dr. Goodwin, defendant's doctor, originally recommended that plaintiff be transferred from the custodial craft to a manual clerk position.
6. Plaintiff will show that he did and could perform the duties of a distribution clerk if the United States Postal Service would provide him with reasonable accommodation by permitting rest at periodic intervals.
7. Plaintiff will show that the defendant never attempted to ascertain ... plaintiff's *1188 ability to perform other clerical jobs at the defendant's facility.
8. There were no attempts on the part of the defendant to reasonably accommodate [his] handicap even though there have been cases in the past where the defendant has accommodated employees by reclassifying their position or by reassigning them to positions that they could perform in light of their physical and/or mental handicap.
9. Plaintiff will prove that he was physically handicapped due to his hernia, was mentally handicapped due to his manic depressive state and as a result of his physical handicap could not perform the duties of laborer/custodian. Notwithstanding these conditions, plaintiff could have safely and adequately performed clerical duties with certain reasonable accommodations. (Emphasis added).
The only statement made by the plaintiff in the entire record indicating that with accommodations, he could have remained in his position as a laborer/custodian, is found in his memorandum in opposition to summary judgment. He states therein:
1. Plaintiff will prove at the trial that defendant had the duty ... to provide him light duty work and/or to restrict his duties that plaintiff was performing as laborer/custodian.
2. Defendant cannot now argue that plaintiff was unable to perform the essential duties of his position if he was never accorded reasonable accommodation by defendant.
The Court therefore concludes, after reviewing the entire record in this case, that the plaintiff does not genuinely dispute the fact that the severity and nature of his impairments rendered him incapable of working as a laborer/custodian. Since any accommodation attempting to permit the plaintiff to continue in that position would have been futile and unacceptable to the plaintiff, the only remaining issue is whether the defendant owed to the plaintiff the obligation to reassign him to another job as a reasonable accommodation.
III. Does the Rehabilitation Act require an employer to reassign a handicapped individual as a reasonable accommodation?
The plaintiff has asserted in his complaint that even if he was unable to perform the job of laborer/custodian under any circumstances due to his mental and physical handicap, he could have performed the duties of a distribution clerk and therefore was entitled to reassignment as a reasonable accommodation.
As noted earlier, 29 C.F.R. § 1613.02(f) requires that a handicapped employee be able to perform the essential functions of "the position in question" in order to be classified as a "qualified handicapped person." Thus, the issue to be addressed is whether the phrase "position in question" is to be limited to the then present position occupied by the plaintiff or whether it may refer to another position within the agency.
Further, as noted earlier, 29 C.F.R. § 1613.704(b) mentions making facilities readily accessible, job restructuring, modifying equipment, and providing interpreters as some types of reasonable accommodations.
The above regulation does not enumerate reassignment as a required accommodation. However, the regulation clearly states that the methods of accommodation indicated are not exhaustive. While there is authority indicating that reassignment is not precluded from possible forms of accommodation, Jones v. Federal Communication [sic] Commission, EEOC Decision No. 03820023 (October 21, 1982), there are no cases which hold that reassignment is required. See Ignacio v. U.S. Postal Service, 85 Federal Merit Systems Reporter # 7062. Examination of the regulation lends to the ultimate conclusion that the duty to reasonably accommodate only contemplates accommodation of a qualified handicapped employee's present position. It does not include a requirement to reassign or transfer an employee to another position. Preferential reassignment for handicapped employees was not intended by the Rehabilitation Act. The Rehabilitation *1189 Act and its accompanying regulations indicate that the law requires reasonable workplace modification or accommodation in order to allow the handicapped person to remain in that position. There is nothing in the law or accompanying regulations to suggest that reasonable accommodation requires an agency to reassign an employee to another position. The Supreme Court has cautioned against infringing the rights of innocent employees when fashioning Title VII remedies. Ford Motor Co. v. Equal Employment Opportunity Commission, 458 U.S. 219, 102 S. Ct. 3057, 73 L. Ed. 2d 721 (1982); Cf. Yott v. North American Rockwell Corp., 602 F.2d 904, 908 (9th Cir.1979), cert. denied, 445 U.S. 928, 100 S. Ct. 1316, 63 L. Ed. 2d 761 (1980). If the plaintiff were automatically reassigned to another department, this could eliminate his need to compete with other qualified employees. Such a reassignment might also violate other employees' rights secured by the collective bargaining agreement between the Postal Service and the unions.
In conclusion, the Court grants summary judgment to the defendant because the plaintiff was no longer able to continue his work as a laborer/custodian, therefore, he was no longer a "qualified handicapped person" under the law. The duty of an employer to accommodate attaches only when the employee is qualified. Finally, an employer under the Rehabilitation Act is not required to reassign a handicapped person as a reasonable accommodation.
NOTES
[1] Statements made by a party in a pretrial order are required to be considered in a motion for summary judgment. Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1161, 1168 (D.Pa.1980).
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525 S.W.2d 336 (1975)
KANSAS CITY, Missouri, Respondent,
v.
William C. McCOY, Appellant.
No. 58650.
Supreme Court of Missouri, En Banc.
July 14, 1975.
*337 Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, Walter J. O'Toole, Jr., Asst. City Prosecutor, Kansas City, for respondent.
Robert L. Shirkey, Kansas City, for appellant.
HENLEY, Judge.
This case involves the question of whether, in the trial of an accused for violation of a municipal ordinance, the confrontation clause of the sixth amendment to the federal constitution requires that an expert witness giving testimony against him be physically present in court.
William C. McCoy (defendant) was charged with, tried in the municipal court, and convicted of possession of marijuana in violation of § 18.152 of the revised ordinances of the city of Kansas City, Missouri. He appealed to the circuit court of Jackson county and, upon trial de novo with the same evidence, was again found guilty and sentenced to imprisonment for 30 days at the municipal farm. From that judgment of conviction he appealed to this court claiming that a determination of the issues involves construction of the confrontation clause of the sixth amendment to the constitution of the United States.[1] We affirm.
Defendant was arrested for two traffic offenses. In the process of "booking" him on those charges he was searched by a police officer preparatory to incarceration pending arrangements for his release on bail. During this search a plastic bag containing a substance which appeared to be marijuana was found on his person. Chemical analysis of this substance confirmed that it was marijuana and the instant charge was filed.
The evidence of the city that the substance found on defendant's person was in fact marijuana was presented to the municipal court, and later to the circuit court on appeal, by means of closed circuit television[2] connecting the courtroom with the police crime laboratory approximately 12 miles from the courthouse.
Dr. Mattias Yoong, the city's witness, was located in an office at the crime laboratory while testifying in response to questions propounded by city's counsel, who was located in the courtroom. Present in the courtroom during this witness's testimony, in addition to the city attorney, were the judge, the defendant, his attorneys, and several spectators, unidentified except that two were reporters for news media. Present in the crime laboratory office while Dr. Yoong was testifying were the Director and assistant Director of the laboratory and two other chemists. The electronic equipment used in this presentation which was visible in the courtroom and in the crime laboratory, consisted of two stationary television cameras, two monitors which appear to be ordinary television sets and microphones for use by the judge and counsel located in the courtroom, and a camera, monitor and microphone located in the laboratory.
During the examination of Dr. Yoong by counsel, each could see and hear the other as well as see and hear and be seen and heard by the trier of fact (the judge) and the defendant, the transmission of the images and the voices being instantaneous. As presented in this court, the picture and voices were clear and distinct.
Dr. Yoong testified on direct examination, over objection of defendant based on *338 the above-stated sixth amendment grounds, that he had made a chemical analysis of the substance taken from defendant's person and determined that it was marijuana. Defendant's counsel had ample opportunity to cross-examine the witness but declined to do so. In addition to his objection to Dr. Yoong's testimony on sixth amendment grounds, defendant also contends that this testimony was not admissible because it was not the best evidence since the witness was not physically present.
Referring to this right of an accused, the Supreme Court of the United States said in Mattox v. United States, 156 U.S. 237, 242, 15 S. Ct. 337, 339, 39 L. Ed. 409 (1895):
"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case.
* * * * * *
"We are bound to interpret the constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subjectsuch as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused, and further than the safety of the public will warrant." See also: Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934); Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972).
In Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965) the court, considering a claim of denial of the sixth amendment right of confrontation, struck down a prosecutor's tactic of calling a convicted accomplice of the defendant to the witness stand, securing a refusal to testify, and then using the refusal as a springboard to read the accomplice's alleged confession into the record without affording the defendant an opportunity to cross-examine. But in discussing the right, the court also said: "Our cases construing the clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation." 380 U.S. at 418, 85 S.Ct. at 1076. (emphasis supplied)
The Supreme Judicial Court of Massachusetts in Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346[7, 8] (1969), a case involving an appeal from a conviction of possession of marijuana, held that the right of confrontation was not denied by the admission in evidence of a certificate of the state's Department of Public Health that its analysis of the contents of a bag showed that it was marijuana. 253 N.E.2d at 351-352.
*339 These cases all involve convictions of felonies under the general law; here, we are concerned with a case involving prosecution and conviction of violating a municipal ordinance, a proceeding said to be "civil in nature, although somewhat criminal in respect to some of the prescribed procedure." Delaney v. Police Court of Kansas City, 167 Mo. 667, 67 S.W. 589, 591 (1902); State ex rel. Cole v. Nigro, 471 S.W.2d 933, 936[2] (Mo. banc 1971).
We have the view that to require the physical presence of an expert witness against one accused of violating a municipal police regulation would be to require more than the confrontation clause rights of an accused demand in many instances of prosecutions for felonies. Today we have means of communication not available only a few years ago. We can now by electronic means project the image and voice of man clearly and distinctly at the speed of light and control that means and insure its integrity by closed circuit and monitors. While Dr. Yoong was not physically present in the courtroom, his image and his voice were there; they were there for the purpose of examination and cross-examination of the witness as much so as if he were there in person; they were there for defendant to see and hear and, by the same means, simultaneously for him to be seen and heard by the witness; they were there for the trier of fact to see and hear and observe the demeanor of the witness as he sat miles, but much less than a second, away responding to questions propounded by counsel.
The court did not err in the admission of this evidence by use of closed circuit television.
Relying principally on Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), defendant also contends that he was denied due process of law guaranteed by the fifth and fourteenth amendments to the constitution of the United States in that (1) a television camera was within ten feet of him; (2) two reporters were in the courtroom taking notes; and (3) a microphone on the counsel table within two feet of him inhibited private communication with his counsel. This, defendant says, created a spectacle, a circus atmosphere in the courtroom.
The judge who heard the case in the de novo trial was presented the same evidence and found that "[t]he atmosphere in the courtroom * * * was calm, judicial decorum was maintained throughout the proceedings, and the electronic equipment was installed in an unobtrusive manner * *;" and "that there was no circus atmosphere in the courtroom, and nothing remotely approaching the circumstances in the Sheppard case * * *." Our review of the record persuades us that the circuit judge's findings and conclusions were not erroneous.
The defendant had a fair trial and was not denied due process by the presence of reporters and the location and use of the described electronic equipment.
The judge presiding at the de novo trial found also that defendant and his counsel did confer privately at the counsel table notwithstanding the close proximity of the microphone; that he (the judge) actually observed them conferring, but their conversations were not recorded on the video tape. Our conclusion from our review of this record agrees with the finding of the trial judge. There was no invasion of the attorney-client privilege by the location of this microphone and the point is ruled against defendant.
Defendant's next point is that "[t]he involuntary reproduction of defense counsel's image and voice is contrary to the canons of ethics (Rule 4, Code of Professional Responsibility), and contrary to Rule 2.35, canons of judicial ethics (now Rule 2, Code of Judicial Conduct), which state that televising of court proceedings should not be permitted."
*340 The Code of Professional Responsibility (DR 2-101) bans publicity or public advertising by a lawyer calculated to attract clients; the ban is rooted in the public interest. This closed circuit television was not available for general view by the public; it was "closed" to the public. The record discloses that while the microwave beam by which the picture and sound were projected across country could be intercepted by anyone, as defendant says, to do so, the intercepter would have to have and know how to use very expensive and highly sophisticated electronic equipment; an ordinary television set generally available to and used by the public would not suffice. The type of projection of counsel's image and voice employed in this case is not that which Rule 4 proscribes. Nor is it the type of "televising" proscribed by Rule 2.35 (now Canon 3, subd. A(7) of Rule 2, Code of Judicial Conduct) relating to the televising of court proceedings.[3]
Defendant's last point is that the court erred in admitting in evidence the marijuana found on his person, because it was "illegally and unconstitutionally seized." The search and seizure in this case, like that in State v. Darabcsek, 412 S.W.2d 97 (Mo.1967), was made as a part of the "booking" procedure in connection with defendant's arrest for another offense and was preparatory to his incarceration. The search in that case also produced evidence of unlawful possession of a drug. In Darabcsek, supra, the court approved the search and seizure, holding that it was a reasonable procedure for the protection of other prisoners, attendants, and the defendant himself. There is no merit in the point.
The judgment is affirmed.
HOLMAN, FINCH and DONNELLY, JJ., concur.
BARDGETT, J., dissents in separate dissenting opinion filed; SEILER, C. J., and MORGAN, J., dissent and concur in separate dissenting opinion of BARDGETT, J.
BARDGETT, Judge (dissenting).
I respectfully dissent. This appeal comes here basically as a "test" case in which the prosecuting authorities in Kansas City seek to find out if the presentation of oral testimony over closed circuit television where the witness is not present in court is permissible under the confrontation clause of the U.S. Constitution, Amendment VI. Defendant nowhere asserts rights under the Constitution of Missouri 1945, Art. I, Sec. 18(a), V.A.M.S., and, therefore, the principal opinion does not consider the issues under the Missouri Constitution.
I realize that the principal opinion is narrowly drawn so as to restrict the holding to the confrontation clause of the U.S. Constitution, Amendment VI, and then only to a prosecution for a municipal ordinance violation where the witness utilizing closed circuit television is in the "expert" category and the proceeding is characterized as "civil in nature, although somewhat criminal in respect to some of the prescribed procedure."
In my opinion, the facts of this case do not portray a sufficiently clear picture of the use of closed circuit television with respect to confrontation and cross-examination rights under the Sixth Amendment for this court to really come to grips with the problem.
Here, there was no serious contention that the substance was not marijuana and defense counsel did not even undertake to cross-examine the expert witness. We do know that there were four people in the room with the witness who were not shown on television, and there was no representative of the defendant there at all. We also know that there can be no handling of exhibits between either counsel and the witness. The "demeanor" of a witness *341 comes across differently over television than when the witness is personally present in court. The foregoing are merely some of the defects, as I see it, that are apparent from viewing the television tape.
Under the facts of this case and the manner in which the defendant's attorney conducted the defense, I question whether there was any prejudice to the defendant from the use of closed circuit television where the testimony was restricted to identifying a substance as marijuana and where the defendant's attorney made no effort to cross-examine this witness or any other witness as to the identity of the substance.
Nevertheless, the principal opinion will function as an approval of a procedure which, under the facts of this case, is not shown to protect or satisfy the confrontation and cross-examination rights of a defendant under the U.S. Constitution, Amendment VI, and, therefore, I dissent.
NOTES
[1] He was released on his own recognizance by the municipal court pending final disposition of these appeals.
[2] The video tape of the presentation of this evidence was preserved, made a part of the transcript on appeal, and was viewed and heard by this court when the case was argued.
[3] Canon 3 A(7)(a) of Rule 2 (effective July 1, 1975) provides that the trial judge may authorize the use of electronic and photographic means for the presentation of evidence.
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623 F. Supp. 1177 (1985)
Ronald BOLFA,
v.
POOL OFFSHORE COMPANY, et al.
Civ. A. No. 84-1900 "L".
United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
December 18, 1985.
*1178 Gary R. Steckler, Lafayette, La., for plaintiff.
Ralph E. Kraft, Lafayette, La., Scott F. Stains, New Orleans, La., for defendants.
MEMORANDUM RULING
DUHE, District Judge.
This matter arises as a result of injuries sustained by plaintiff Ronald Bolfa while he was employed by Louisiana Offshore Caterers, Inc. ("LOC"), as a galley hand working aboard Pool Offshore Company's ("Pool") submersible drill barge No. 924. Bolfa brought suit against LOC and Pool. The plaintiff now moves for summary judgment on the issue of seaman status, and Pool moves for summary judgment on its cross-claim against LOC for contractual indemnity.
I. Plaintiff Ronald Bolfa's motion for Summary Judgment
The test for determining seaman status established in Offshore Oil Co. v. Robison, 266 F.2d 769 (5th Cir.1959), remains in force in the Fifth Circuit with slight modification. A maritime worker claiming seaman status must satisfy the following criteria:
(1) He must have a more or less permanent connection with
(2) a vessel in navigation and
(3) the capacity in which he is employed or the duties which he performs must contribute to the function of the vessel, the accomplishment of its mission or its operation or welfare in terms of its maintenance during its movement or during anchorage for its future trips.
Bernard v. Binnings Const., 741 F.2d 824, 827 (5th Cir.1984). Pleadings and admissions have established that the plaintiff was employed by the defendant Louisiana Offshore Caterers, Inc., ("LOC") as a galley hand working aboard Pool Offshore Company's ("Pool") submersible drill barge No. 924 at the time of the accident. The parties admit that the drill barge is a "vessel" under the test, that the vessel was located in navigable waters, and that the plaintiff was within the course and scope of his employment performing his duties aboard the vessel at the time of the accident.
The plaintiff testified at his deposition that LOC's personnel manager assigned him to Pool No. 924 to work as a galley hand. Following instructions from the cook, the plaintiff was disposing of grocery boxes when the accident occurred. Sidney J. Savoie, Pool toolpusher, testified at his deposition that the crews aboard the drill barge included the company man, the toolpusher, the drill crews, and LOC's catering crew. All crew personnel ate and slept in the living quarters of the vessel, and the duties of the galley hand were to cook and clean the kitchen and the living quarters.
Mr. Joseph R. Fontenot, the personnel manager of LOC, stated in his deposition that he hired the plaintiff for a tour of duty to last 28 days. Following the plaintiff's 7 days off, he could have returned to Pool No. 924 for another tour of duty and could follow it to any new locations. LOC serviced *1179 Pool No. 924 on at least twelve different locations after the plaintiff's accident. LOC regularly sent catering crews for tours of duty to last 28 days, and they ate, slept, and performed all of their duties aboard Pool No. 924. The catering crews usually returned to the same vessel and followed it to a new location. LOC had been servicing Pool No. 924 for about five years.
Mr. Roland Berque, the Vice President of LOC, testified by deposition that LOC contracted with Pool to provide groceries, manpower, and a crew of 17 persons to clean the vessel. Pool set the terms and regulations for the catering crew to follow. LOC encouraged crew members to return to the same vessel in order to save gasoline expense money.
The plaintiff argues that the deposition testimony establishes that he had a "more or less permanent connection" with the vessel. A movable drilling rig is a "vessel". Robison, 266 F.2d at 780. The defendants have admitted that the rig was located in navigable waters at the time of the accident, November 11, 1983. Finally, the plaintiff, working as a galley hand, was "aboard the vessel primarily in an aid of navigation." See Mahramas v. American Export Isbrandtsen Lines, 475 F.2d 165, 170 (2nd Cir.1973) (hairdresser aboard crew ship held to be seaman for purposes of enforcement of seaman's remedies against vessel and operator); Hebert v. California Oil Company, 280 F. Supp. 754 (W.D.La. 1967) (catering company employee held to be doing work that contributed to mission of drill barge on which he was employed); Sims v. Marine Catering Service, Inc., 217 F. Supp. 511 (E.D.La.1963) (plaintiff employee of catering company serving aboard motor vessel used as quarter boat for drilling company employees engaged in offshore oil development activities held to be permanently attached to vessel and duties as messman contributed to function of vessel or to accomplishment of its mission); Arnold J. O'Dell v. North River Insurance Company, 614 F. Supp. 1556 (W.D.La.1985) (galley hand employee of catering contractor injured aboard jackup rig held to be seaman).
The plaintiff maintains that although he was on the vessel for only three days before the accident, he was assigned for a 28 day shift and would have returned for a subsequent tour of duty but for his injury. Regarding the permanent assignment test, the Fifth Circuit has recognized that the word "permanent" has never been assigned a literal interpretation under the Jones Act and should be used as "an analytical starting point instead of a self-executing formula." Davis v. Hill Engineering, Inc., 549 F.2d 314, 327 (5th Cir.1977).
In opposition LOC asserts that seaman status is ordinarily a question for the trier of fact. Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir.1980). Summary judgment is proper on the question of seaman status only where the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences on any of the elements of the seaman test. Bernard, 741 F.2d at 838. LOC argues that a genuine issue of material fact exists concerning the "permanent attachment" element of the test. The plaintiff was aboard the vessel only three days when the accident occurred. Although he was assigned to work aboard the vessel for a 28 day work shift, it cannot be said with substantial certainty that the plaintiff would have returned to this same drill barge at the expiration of his first work shift. In addition, the plaintiff did not sign any type of work contract that would restrict his job duties to Pool No. 924.
The facts, however, clearly establish that the plaintiff did have a "more or less permanent connection" with the vessel and that he is a seaman. Accordingly, the plaintiff's motion for summary judgment on the issue of seaman's status is granted.
II. Pool Offshore Company's Motion for Summary Judgment
Pool moves for summary judgment on its cross-claim against Louisiana Offshore Caterers *1180 for contractual indemnity. Pool premises its motion on the following assumptions: (1) that Pool has acquired the assets and liabilities of Livingston Oilwell Service, Inc., including Livingston Drill Barge No. 24 and the contract pertaining to the catering services aboard that drilling barge; (2) that the indemnity clause within the contract between Livingston Oilwell Service, Inc. and Louisiana Offshore Caterers, Inc. provides them with contractual indemnity for any sums for which they may be held liable, arising out of the injury and subsequent lawsuit filed by Ronald Bolfa; and (3) that the contract between Louisiana Offshore Caterers, Inc. and Livingston Oilwell Service, Inc. and the indemnity provisions within that contract are governed by maritime law. This court has already found that the plaintiff is a seaman.
LOC provided catering service to Pool pursuant to a contract between LOC and Pool's predecessor in interest, Livingston Oilwell Service, Inc. ("Livingston"), dated June 26, 1979. Pool maintains that on September 30, 1982, Livingston assigned all of its assets to Pool, and Pool assumed all of Livingston's liabilities. Pool asserts that it acquired as an asset the contract with LOC and Livingston Drilling Barge No. 24. Pool submits a Certificate of Documentation showing that Pool now owns Livingston Drill Barge No. 24, which has been renamed Pool Drilling Barge No. 924.
LOC asserts that this Certificate of Documentation, which proves Pool owns Livingston Drill Barge No. 24, fails to indicate precisely how Pool obtained the barge. In addition the document does not reveal who owned the barge during the interim between the date of the assignment, September 30, 1982, and the date the vessel was documented, January 21, 1983.
Under the contract, LOC agreed to provide food, supplies and manpower, to prepare and serve meals, and to maintain the kitchen, dining and living quarters in a neat and clean condition. Pool asserts that furnishing meals and cleaning the kitchen and living quarters contributes to the mission of the vessel. The contract further provides members of the crew of the vessel, the cook, and the galley hand. Since the contract provides for members of the crew and for services necessary for the goal of the vessel, the contract is a maritime contract. See Reina Victoria, 298 F. 765 (S.D.N.Y.1925) (supplier of food and water to vessel entitled to maritime lien for services); Kossick v. United Fruit Company, 365 U.S. 731, 81 S. Ct. 886, 6 L. Ed. 2d 56 (1961) ("without a doubt a contract for hire either of a ship or of the sailors and officers to man her is within the admiralty jurisdiction"). LOC argues that the contract is a "mixed contract" since it requires the Contractor to purchase supplies and employ personnel. As a mixed contract, maritime law would govern only the maritime subject matter. The contract, however, is clearly a maritime contract rather than a mixed contract.
The indemnity portion of the contract provides, as follows:
Contractor [LOC] further agrees to protect, indemnify and hold harmless, Company, [Pool] its agents, directors, officers, and employees, and servants or companies for whom Company is performing operations from and against any and all claims, demands, suits, and causes of action of every kind and character which may be brought against them (directly or indirectly) by any employee of the contractor or the legal representative of heirs of such employee, including any person judicially determined to be an employee of the Contractor, on account of personal injury, illness, disease, death, or loss of services or loss of or damage to property and any wise arising out of or incident to the work to be performed under this contract and even though occasioned brought about or caused in whole or in part by the negligence of Company, its agents, directors, officers, employees, servants, companies for whom Company is performing operations or by the unseaworthiness of any vessel.
*1181 Pool argues that maritime law governs the indemnity clause in this maritime contract. See Corbitt, 654 F.2d at 332 (maritime law allows indemnity contracts); Roberts v. Williams-McWilliams, 648 F.2d 255, 264 (5th Cir.1981) (general maritime law governs indemnity clause in maritime contract).
In O'Dell v. North River Insurance Co., 614 F. Supp. 1556 (W.D.La.1985), Judge Hunter found that a caterer's employee who was working as a galley hand on a jackup drilling rig was a seaman. The court decided additionally that the indemnity contract between the shipowner and the catering company was maritime in nature, that maritime law governed the indemnity provision, that the Louisiana Anti-Indemnity Statute was inapplicable, and that the contract language gave rise to indemnity. Nearly identical to the indemnity provision between Pool and LOC, the indemnity contract in O'Dell provided for the sole or concurrent negligence of the shipowner or for the unseaworthiness of any of the shipowner's vessels.
Judge Hunter acknowledged the existence of two conflicting lines of Fifth Circuit authority on the issue of whether maritime law governs an indemnity clause in a maritime contract and followed the earlier line of cases: Lirette v. Popich Brothers Water Transport, 699 F.2d 725, 728 n. 11 (5th Cir.1983); Corbitt v. Diamond M Drilling Co., 654 F.2d 329, 332 (5th Cir. 1981); Transcontinental Gas Pipeline Corp. v. Mobile Drilling Barge, 424 F.2d 684, 691 (5th Cir.1980). Lirette, Corbitt, and Transcontinental Gas Pipeline all hold that maritime law governs an indemnity clause in a maritime contract. LOC argues that since the Fifth Circuit has not clarified the issue, conflicting inferences could be drawn such that a motion for summary judgment is improper.
No party disputes that the plaintiff was employed as a galley hand aboard the Pool rig. The facts show that the alleged injury occurred while the plaintiff was carrying out the garbage. Thus, it is clear that he was employed for the purpose of, and was in fact engaged in providing the maritime service contemplated by the contract. Accordingly, the indemnity provision in the maritime contract is governed by maritime law.
Pool next asserts that LOC's duty to indemnify it includes costs and attorney's fees. The specific contract provision states, as follows:
Contractors shall defend all suits brought upon any claim, demand, or cause of action covered by this provision and pay all costs and expenses incidental thereto, but the Company shall have the right, at its option, to participate at its own expense in the defense of any such suit without relieving the Contractor of any obligation hereunder.
A contract to hold harmless and to indemnify, if applicable, includes payment of costs and attorney's fees incurred by the indemnitee. Olsen v. Shell Oil Co., 595 F.2d 1099, 1103 (5th Cir.1979). LOC cites Weathersby v. Conoco Oil Co., 752 F.2d 953, 959, (5th Cir.1984), for the proposition that Pool cannot recover attorney's fees and costs. Weathersby says that under a "general indemnity agreement," the indemnitee has no right to recover legal fees. Pool and LOC, however, had a specific indemnity agreement, and Pool is therefore entitled to recover costs and attorney's fees. Accordingly, Pool's motion for summary judgment on its cross-claim against LOC for contractual indemnity is granted.
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525 S.W.2d 501 (1975)
CORPUS CHRISTI BANK AND TRUST, Petitioner,
v.
Chester SMITH et al., Respondents.
No. B-4883.
Supreme Court of Texas.
June 4, 1975.
Rehearing Denied July 23, 1975.
*502 Wood, Boykin & Wolter, Mark W. Owen, Corpus Christi, for petitioner.
Wood, Burney, Nesbitt & Ryan, Shelby A. Jordan, Luther & Karchmer, Max J. Luther, III, Milton W. Walton, Meredith & Donnell, Finley Edmonds, Sorrell, Anderson & Sorrell, William R. Anderson, Jr., Harold Alberts, James F. McKibben, Jr., Asst. City Atty., Corpus Christi, for respondents.
POPE, Justice.
Corpus Christi Bank and Trust contends that its security interest in certain funds retained by the City of Corpus Christi under a construction contract should prevail over the claims of certain materialmen and subcontractors who failed to perfect their rights against a payment bond given under Article 5160. The trial court, sitting without a jury, rendered judgment for the materialmen and subcontractors giving them judgment against the original contractor and also for the retained funds. The court of civil appeals affirmed. 512 S.W.2d 761. We reverse that part of the judgment which denied the Bank's secured claim to the retained funds and render judgment that the Bank recover the funds.
*503 On March 12, 1971, Manson Industries entered into a contract with the City of Corpus Christi to repair damages to the municipal airport which were caused by Hurricane Celia. The contract required Manson to provide performance and payment bonds in the sum of $22,250.00, the amount of the contract price. Manson provided those bonds pursuant to the contract and Article 5160, Tex.Rev.Civ.Stat.Ann. (1971). The project was financed through the Bank, which advanced funds to Manson Industries as needed. The advancements were secured by agreement by Manson's accounts receivable then owned or thereafter acquired. Similar security agreements were entered into on February 26, 1971, and July 27, 1971. The Bank filed financing statements with the Secretary of State on December 31, 1970 and January 15, 1971. Manson began the repair work in early April, 1971, and in November of that year, the city engineer certified the work as completed in substantial compliance with the contract.
Several individuals and firms came forward with claims for unpaid materials and labor. They were Chester Smith, Armstrong Lumber Co., Thurman-Fondren Glass Co., Inc., A.B.C. Hardware and Supply Co., Baker Roofing and Sheet Metal Co., and Heath Floor Co., Inc. Chester Smith filed suit against the contractor, Manson Industries, the Bank as Manson's assignee of the contract rights and accounts receivable, and the City of Corpus Christi. The City tendered into the court the sum of $13,221.10 which it had retained and interplead the other parties who asserted claims to the funds. The City was then dismissed and is not a party to the suit. Since A.B.C. Hardware and Supply Co. gave notice of its claim as required by Article 5160, that company recovered against the surety on the payment bond by force of its perfected claim and it is no longer in the case.
The Bank claims that it has prior claim upon the remaining funds because it perfected its security interest. The materialmen and subcontractors say that they own the funds because they are third-party beneficiaries under the contract which the City made with Manson. They do not and could not assert any rights under the payment bond since they did not comply with Article 5160. The controlling question presented in this case is whether the following provision of the contract between the City of Corpus Christi and Manson Industries as the original contractor made the materialmen and subcontractors third-party beneficiaries under the contract:
Whenever the improvement provided for by the contract shall have been completely performed on the part of the Contractor as evidenced by the Engineer in the Certificate of Final Inspection, a final estimate showing the value of the work will be prepared by the Engineer as soon as the necessary measurements and computations can be made. All prior estimates upon which payments have been made are subject to necessary corrections or revisions in the final payment. The amount of this final estimate, less any sums that have been deducted or retained under the provisions of the contract, will be paid the Contractor within thirty (30) days after final acceptance Provided the Contractor has furnished to the City satisfactory evidence that all sums of money due for any labor, materials, apparatus, fixtures, or machinery furnished for and used in the prosecution of the work have been paid; or that the person or persons to whom the sum may respectively be due have consented to such final payment.... (Emphasis added.)
The intention of the contracting parties is of controlling significance to a determination that a third party may enforce the contract provision. Banker v. Breaux, 133 Tex. 183, 128 S.W.2d 23 (1939). In deriving intent, we must begin with the presumption that parties contract for themselves, and a contract will not be construed *504 as having been made for the benefit of third parties unless it clearly appears that such was the intention of the contracting parties. Employers' Liability Assur. Corp. v. Trane Co., 139 Tex. 388, 163 S.W.2d 398 (1942); Citizens Nat. Bk. v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941); National Bank v. Gulf, C. & S. F. Ry. Co., 95 Tex. 176, 66 S.W. 203 (1902); Republic Nat. Bank v. National Bankers Life Ins. Co., 427 S.W.2d 76 (Tex.Civ.App.1968, writ ref'd n.r.e.); 17 Am.Jur.2d, Contracts § 304 (1964).
The assertion of rights as third-party beneficiaries to funds retained under construction contracts has often been the source of claims by materialmen and laborers. This court has consistently denied the claims. Citizens Nat. Bk. v. Texas & P. Ry. Co., Supra; Tezel & Cotter v. Roark, 301 S.W.2d 179 (Tex.Civ.App.1957, writ ref'd); Scarborough v. Victoria Bank & Trust Co., 250 S.W.2d 918 (Tex.Civ.App.1952, writ ref'd); C. A. Dunham Co. v. McKee, 57 S.W.2d 1132 (Tex.Civ.App.1933, writ ref'd); See also Barfield v. Henderson, 471 S.W.2d 633 (Tex.Civ.App.1971, writ ref'd n.r.e.); Henderson v. Couch, 274 S.W.2d 844 (Tex. Civ.App.1955, no writ); Houston Shell & Concrete Co. v. Minella, 269 S.W.2d 953 (Tex.Civ.App.1954, writ ref'd n.r.e.).
In the first case, above cited, Texas & Pacific Railway Company contracted with Locke, a general contractor, for grading and culvert work. Locke financed the project with Citizens National Bank, who secured the loan by taking an assignment of funds due Locke under the contract with Railway. The owner, Railway, also retained fifteen percent of the funds due under the contract, pursuant to a contract provision nearly identical to that involved in this case.[1] After completion of the work, the bank sued to recover the funds by virtue of its assignment contract with Locke, and the materialmen intervened claiming to be third-party beneficiaries of the contract between Locke and Railway. This court held that the retainage provision in the contract was intended to benefit Railway to protect it against lien claims on its property, and was not intended to benefit the third-party materialmen.
A similar Texas case is Scarborough v. Victoria Bank & Trust Co., 250 S.W.2d 918 (Tex.Civ.App.1952, writ ref'd). The facts are very similar to the instant case, except that Scarborough involved a private owner. The owner, however, required the general contractor to execute a performance bond in order to insulate the owner's property from liens. In spite of the fact that the owner's property was adequately protected, it was held that the retainage provision was not a contract for the benefit of materialmen.
The materialmen and subcontractors here forcibly argue and the courts below have held that all of the prior decisions concerning claims to retainage as third-party beneficiaries are distinguishable since no lien can be enforced against the property of a municipality and, unless the retainage provision was meant to benefit them, it is an idle provision which is meaningless apart from such an intent.
A municipality has a number of reasons for including the retainage provision in its contract with the contractor. The provision *505 insures the diligent prosecution of the work by affording an incentive to the contractor to finish his work. It affords protection and indemnity to the public agency in the event the contractor abandons his work. It supplies salvage funds for the contractor's surety in the event it makes good on defaults for which it is bound. 64 Am.Jur.2d, Public Works and Contracts § 95 (1972); Employers' Cas. Co. v. Rockwall County, 120 Tex. 441, 35 S.W.2d 690 (1931); Trinity Universal Ins. Co. v. Bellmead State Bank, 396 S.W.2d 163 (Tex.Civ.App.1965, writ ref'd n.r.e.); Aetna Cas. & Sur. Co. v. Robertson Lumber Co., 3 S.W.2d 895 (Tex.Civ. App.1928, no writ).
A part of the contract between the City and contractor was the requirement for a payment bond in conformity with Article 5160. The City prescribed the form of the payment bond including the words that the contractor and surety "are held and firmly bound unto the City of Corpus Christi.. and unto all persons, firms, and corporations who may furnish materials for or perform labor upon the buildings, structures, or improvements referred to in the attached contract ... to be paid in Nueces County, Texas, for the payment of which sum well and truly be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally ..."
The City, as appears from both the contract provision and the provisions of the prescribed and required payment bond, was interested in protecting the materialmen and subcontractors, and it clearly provided protection in the form of a bond which also conferred upon them the right to recover under the bond. That plan was more consistent with an intent on the part of the City to afford protection to the materialmen and subcontractors who complied with Article 5160 by giving timely notice than to contractually obligate the City. The requirement for the Article 5160 performance and payment bonds shows an intent to insulate itself contractually by the substitution of a source for payment. Other provisions of the contract between the City and Manson, the contractor, further show the absence of an intent to benefit materialmen and subcontractors otherwise. One provision is: "... the City will not recognize any subcontractor on the work."
In our opinion, it appears that the City intended to protect the materialmen and subcontractors by its contractual requirement for an Article 5160 payment bond, but it does not "clearly appear," as required by Citizens that the City intended to make them claimants against the City on the contract. Since they did not perfect their claims through Article 5160, their claims are subordinate to the secured claim of the Bank.
The court of civil appeals cited Cove Irr. Dist. v. American Surety Co., 42 F.2d 957 (9th Cir. 1930) and General Electric Supply Co. v. Epco Constructors, Inc., 332 F. Supp. 112 (S.D.Tex.1971) in support of its holding that the materialmen and laborers were third-party beneficiaries of the contract between the City and the general contractor. The materialmen and laborers rely also upon Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S. Ct. 232, 9 L. Ed. 2d 190 (1962) and Avco Delta Corporation Canada Ltd. v. United States, 484 F.2d 692 (7th Cir. 1973). In Cove, the public agency required its contractor to furnish a payment bond and to indemnify the public agency against any loss or damage. The laborers and materialmen in that case proceeded against the surety on the contractor's bond, and quite correctly the court ruled that the claimants could recover, for that was the purpose intended by the public agency's requirement for a payment bond. General Electric is also distinguishable from the instant case because the materialman there had perfected his lien under Article 5160. Pearlman involved a priority contest for retained funds between the general contractor's trustee in bankruptcy and the surety on a payment bond. Avco, however, is essentially *506 in point with the present case. The Court of Appeals for the Seventh Circuit, applying its interpretation of Illinois law, held that a retained fund was created for the benefit of the subcontractors, laborers and materialmen. The court found that the intent to benefit third parties was evident from the contract. We do not find sufficient evidence of such intent in this case.
The materialmen and subcontractors also argue that the Bank does not have a superior claim to the retained funds since it does not have a security interest in them. Although the Bank executed security agreements describing the collateral, and gave value therefor, the respondents claim that the debtor, Manson, has no rights in the collateral, and consequently the Bank does not have a proper security interest. Tex. Bus. & Comm.Code Ann. § 9.203 (Supp. 1974). The argument is that Manson had no rights in the collateral, the retained funds, because its contract with the City conditioned payment of the retainage upon Manson first paying all subcontractors and materialmen.
The contention that payment by the contractor of all claims of subcontractors, laborers and materialmen, under contract provisions such as involved here, is a necessary condition to the contractor's right to the retainage has been expressly rejected by this court. Citizens National Bank v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941); Scarborough v. Victoria Bank & Trust Co., 250 S.W.2d 918, 923 (Tex.Civ.App.1952, writ ref'd); Tezel & Cotter v. Roark, 301 S.W.2d 179 (Tex.Civ.App. 1957, writ ref'd). Since Manson did have rights in the collateral, it follows that the Bank's security agreements were sufficient to give it a security interest in the retained funds, which is superior to that of general creditors. Tex.Bus. & Comm.Code Ann. § 9.201 (Supp.1974).
We affirm that part of the judgment below which awarded judgment against Lewis Manson d/b/a Manson Industries. We reverse that part of the judgment which awarded recovery to the materialmen and subcontractors for their claims to the retained funds. We render judgment that Corpus Christi Bank & Trust recover the funds interpleaded. Costs are adjudged against the respondents.
NOTES
[1] Upon completion of the work herein provided, the Chief Engineer shall have an inspection made and if the work is complete and satisfactory, a final statement of all the work done and moneys due the Contractor shall be made by the Railway Engineer, whereupon, after the Contractor has furnished written evidence satisfactory to the Railway, that he has paid in full all amounts that may be due by him to any and all persons who may have performed labor or furnished materials or supplies to the Contractor in connection with the work to be done hereunder, the Railway shall pay to the Contractor the full amount earned under this contract, less payments previously made, as soon as final statement can be audited and passed for voucher in the course of the Railway's business.
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121 N.H. 886 (1981)
ROSEMARIE HAIGHT
v.
ALFRED A. PETIT
No. 80-452
Supreme Court of New Hampshire
October 7, 1981
Scammon & Gage, of Exeter (Peter A. Meneghin, III, on the brief and orally), for the plaintiff.
Shute, Engel & Frasier, of Exeter, waived brief and oral argument, for the defendant.
*887 MEMORANDUM OPINION
This is an appeal from a decision of the Rockingham County Superior Court (Bean, J.) denying the plaintiff's motion to modify an order for child support previously entered pursuant to a Uniform Reciprocal Enforcement of Support petition. RSA ch. 546. The order provided for support while the child was a "minor." The court refused to increase the level of support but ordered that it be terminated when the parties' eighteen-year-old child completed high school.
[1] The trial court excluded evidence of the defendant's second spouse's income, ruling that it was irrelevant and not proper evidence to consider in a modification hearing. The plaintiff preserved her exception, and three months later this court held in Logan v. Logan, 120 N.H. 839, 843, 424 A.2d 403, 405 (1980), that RSA 546-A:2 imposes a duty of support upon stepparents. Accordingly, since the total financial picture of both the Haight and Petit families should be taken into account, id. at 842-43, 424 A.2d at 405, we remand.
[2] In connection with the remand, we note that the defendant's support obligation does not end automatically when his child reaches eighteen years of age. Under RSA 546:7, the obligor's duties of support are those imposed by the law of the state where he was present during the period for which support is sought. Defendant has been a New Hampshire resident since 1969, and his duty is, therefore, established by New Hampshire law, including case law. RSA 546:2 V.
[3] In Byrne v. Byrne, 120 N.H. 428, 418 A.2d 1267 (1980), as in this case, the court ordered support for the parties' "minor child" at a time when the age of majority was twenty-one. The age of majority subsequently was reduced to eighteen in 1973. RSA 21:44. We held that the original support order was unaffected by a reduction in the age of majority and that it referred to the age of majority at the time of the order. Byrne v. Byrne, 120 N.H. at 430, 418 A.2d at 1268. See also French v. French, 117 N.H. 696, 699, 378 A.2d 1127, 1128-29 (1977) (trial court has jurisdiction to order obligor to pay educational expenses of child who had reached adulthood); Walker v. Walker, 116 N.H. 717, 718, 367 A.2d 211, 212 (1976). The duration of an obligor's duty of support can depend not only on the terms of the decree but on the age of "majority" when the decree was issued.
*888 Because the trial judge ruled as a matter of law that he could not increase support, we find no merit to the plaintiff's argument that he was "biased."
Remanded.
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291 Pa. Super. 408 (1981)
435 A.2d 1292
Anne S. LEVIN, a Minor, by Her Parents and Natural Guardians, Marvin J. Levin and Charlotte W. Levin and Marvin J. Levin and Charlotte W. Levin, in their own right, Appellants,
v.
DESERT PALACE, INCORPORATED, t/a Caesar's Palace.
Superior Court of Pennsylvania.
Argued December 5, 1980.
Filed October 16, 1981.
*409 Gordon Gelfond, Philadelphia, for appellants.
Joel Paul Fishbein, Philadelphia, for appellee.
Before SPAETH, BROSKY and HOFFMAN, JJ.
HOFFMAN, Judge:
Following the lower court's granting appellee's motion for compulsory nonsuit in this trespass action, appellant moved to have the nonsuit removed. The lower court denied appellant's motion, prompting this appeal. We are unable to reach the merits of the appeal, however, because the order denying appellant's motion has not been reduced to judgment and docketed.
It is clear that an order refusing a new trial or judgment n.o.v. is interlocutory and nonappealable, see, e. g., Slagter v. Thrifty Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981); Mitchell v. United Elevator *410 Co., 290 Pa.Super. 476, 434 A.2d 1243 (1981); Richard v. Chester Extended Care Center, 287 Pa.Super. 289, 430 A.2d 290 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa.Super. 562, 424 A.2d 952 (1981), and does not become appealable until it is "reduced to judgment and docketed." Pa.R.A.P. 301(c). Cf. Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981) (orders denying exceptions following nonjury trial, held not appealable).
Similarly, an appeal from an order denying appellant's motion to remove a nonsuit is interlocutory and nonappealable. Rule 227.1 of the Civil Procedure sets forth the time for filing all post-trial motions after a trial by jury. It provides:
All post-trial motions after trial by jury, including a motion for a new trial, judgment not obstante veredicto, judgment upon the whole record after disagreement of a jury, removal of a nonsuit and in arrest of judgment, shall be filed within ten (10) days after nonsuit or verdict or disagreement of the jury.
(Emphasis added.) The rule was promulgated in 1977 to provide some uniformity in the area of civil post-trial motions. See. E.J. McAleer & Co. v. Iceland Products, 475 Pa. 610, 612 n.2, 381 A.2d 441, 442 n.2 (1977); Explanatory Note to Pa.R.Civ.P. 227.1. See also Pa.R.Civ.P. 1038(d) (filing motions for new trial, judgment n.o.v., and removal of nonsuit not permitted after non-jury trial). Following the denial of post-trial motions, judgment must be entered upon the docket before the matter is properly appealable. Pa.R.A.P. 301(c). We cannot discern any basis for treating the propriety of an appeal from an order denying a motion to take off a nonsuit any differently from that of an order denying a new trial or judgment n. o.v. The motions are to be filed at the same time, before the same court. We can find no justification for developing different procedural prerequisites to appeal these similar motions.
*411 Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, supra 291 Pa.Super. at 405, 435 A.2d at 1289-1290. Accordingly, because judgment has not been entered, the appeal must be quashed.[*]
Appeal quashed.
NOTES
[*] Appellant's counsel was certainly aware of the need to have judgment entered because the trial court specifically informed him of his obligation to file a praecipe to have judgment entered. N.T. 28-29.
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291 Pa. Super. 145 (1981)
435 A.2d 610
John G. BICKELL, Appellant,
v.
Harold STEIN, Frank Ciccarone, indv. and t/a Town and Country Realtors, Elmer Resnick, and Woodbine Park Apartments, Inc.
Superior Court of Pennsylvania.
Argued February 18, 1981.
Filed September 25, 1981.
*146 *147 Robert M. Reibstein, Narberth, for appellant.
Barry M. Miller, Norristown, for Stein, appellee.
Douglas Breidenbach, Norristown, for Ciccarone, appellee.
Howard B. Zavodnick, Philadelphia, for Resnick, etc., appellees.
Before PRICE, MONTEMURO and VAN der VOORT, JJ.
MONTEMURO, Judge:
This is an appeal from an Order sustaining appellee, Frank Ciccarone's preliminary objections and demurrer to the second amended complaint of appellant, John Bickell. The court below dismissed the complaint because the statutory *148 limitation had run as to both causes of action against him. We affirm the Order for the reasons stated below.
On June 21, 1974, appellant bought an apartment building from Woodbine Park Apartments, Inc. (hereinafter, "Seller"). Negotiations leading to the agreement of sale were handled through the agency of appellee, who acted as Seller's real estate broker, and Harold Stein, whom appellant had retained under an exclusive agency contract to find properties for investment. Stein was entitled under his contract to a finder's fee of 6%. However, he was not a licensed broker and therefore not legally qualified to share in a regular real estate commission.
On November 19, 1979, appellant commenced the present action against appellee, Stein, Seller, and Seller's president and majority shareholder, Elmer Resnick. The first cause of action alleges that appellee and Seller caused Stein to make fraudulent representations to appellant about the property's structural soundness and profitability, in return for a share of the commission appellee would receive from Seller if appellant purchased the property. The second cause of action alleges that appellee and Seller intentionally interfered with the contractual relations of exclusive agency between Stein and appellant.[1] Finally, the complaint alleges that appellant did not discover the fee-splitting agreement between appellee and Stein until April 15, 1978.
Appellee raised the statute of limitations as a preliminary objection in the nature of a demurrer,[2] asserting that the *149 alleged fraud and interference occurred prior to the date of sale, and that the present action was not commenced within the two-year period provided by the applicable statute, 42 Pa.C.S.A. § 5524(3) and (4).
After a hearing the court below sustained appellee's demurrer, because . . .
the only fact in the record of this case to support plaintiff's claim that the Statute of Limitations should be tolled is his bare allegation in the complaint that "He did not discover the existence of the aforementioned fee-splitting agreement until on or about April 15, 1978. The burden of proving that the Statute should be tolled is not supported by facts in the record. (Opinion below at pg. 3; emphasis supplied.)
Appellant contends first that the lower court erred in determining that the statutory limitations on his causes of action against appellee had expired.
Initially we note the applicable standard of review, as expressed in Donnelley v. DeBourke, 280 Pa.Super. 486, 489-490, 421 A.2d 826, 828 (1980) (citations omitted):
[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom. . . . [P]reliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.
Next, we note that as a general rule the start of the statutory limitation on an action in tort may be delayed by plaintiff's ignorance of his injury and its cause, until such time as he could or should have discovered it by the exercise *150 of reasonable diligence. Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895); Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428, 431-435 (1981) (and cases cited therein); Gee v. CBS, Inc., 471 F. Supp. 600, 617 (E.D.Pa., 1979).
The plaintiff has the burden of justifying any delay beyond the date on which the limitation would have expired if computed from the date on which the acts giving rise to the cause of action allegedly occurred. He must allege and prove facts which show that he made reasonable efforts to protect his interests and which explain why he was unable to discover the operative facts for his cause of action sooner than he did. Patton v. Commonwealth Trust Co., 276 Pa. 95, 99, 119 A. 834 (1923). Where the facts are neither disputed nor close, the decision on reasonableness is made by the court as a matter of law, instead of by the jury as a matter of fact. A.J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385, 420 A.2d 594 (1980).[3]
As to the action for fraud, appellant alleges that he was told the apartment building was structurally sound and would yield a certain profit, but that in fact the roof and structure were seriously defective, nor was the rental income enough to realize a profit. These are facts which *151 appellant was in a position to discover as soon as he came into possession of the property and the account books. Yet the complaint does not state when or how appellant became aware of the building's alleged defects. No facts are alleged which show that appellant exercised due diligence in protecting his interests. There are no allegations which show that the operative facts were impossible to discover despite the exercise of due diligence. Appellant's awareness of the building's condition and profitability did not depend in any way on discovery of the fee-splitting agreement. Therefore, the complaint's first count was clearly insufficient on its face to justify tolling the statutory limitation, and it was not necessary to submit the question of appellant's diligence to a jury.
The same conclusion applies to the second count for contractual interference. Upon discovery of the alleged misrepresentations, due diligence would have dictated inquiries that could have led to discovery of the fee-splitting agreement. Yet appellant does not allege that he made any inquiries whatever.
Appellant next contends that the lower court erred when it refused to extend the statutory limitation in order to relieve "fraud or its equivalent." 42 Pa.C.S.A. § 5504(b). However, appellant does not allege sufficient facts to show the existence of "fraudulent concealment" or otherwise justify the extension, which may not be granted as a "matter of indulgence."
Next, appellant contends that the lower court committed error by spontaneously raising the issue of res judicata. The lower court took notice of an opinion in the Delaware County Court of Common Pleas, which Seller attached to its Answer in the present action. Said opinion denied appellant's petition to open judgment after judgment was confessed against him for defaulting on the mortgage which Seller had taken back pursuant to the agreement of sale. However, the lower court did not decide that appellant's present action was res judicata. The lower court only *152 looked on the Delaware County opinion as "evidence that plaintiff was or should have been aware of his legal rights long before November of 1979."
Finally, appellant asserts that the lower court erred in declining to rule on the other preliminary objections which appellee raised. We agree with the lower court that the limitations issue is dispositive.
Accordingly, the lower court's order of July 30, 1980, is hereby affirmed.
PRICE, J., did not participate in the consideration or decision of this case.
NOTES
[1] With respect to Resnick and Seller the suit has been settled and discontinued. Stein and Ciccarone filed separate preliminary objections. The third count of the complaint alleges that Stein breached his fiduciary duty to act exclusively for Bickell by entering into the fee-splitting agreement with Seller's agent, by making knowing misrepresentations about the property for the purpose of inducing Bickell to buy it, and by persuading Bickell not to inspect the property.
[2] Although appellant has not raised the following issue, we wish to observe that the statutory limitation applicable to actions for trespass (42 Pa.C.S.A. § 5524) is a waivable defense, and that it therefore should not be raised by Preliminary Objection. Pa.R.C.P. 1017(b)(4). Rather, it should be raised under New Matter. Pa.R.C.P. 1030. In the interest of economy we will nevertheless reach the merits where, as here, the limitation issue was briefed and argued below, and appellee's right to judgment on the pleadings should be clear once the statutory limitation was raised under New Matter. Donnelley v. DeBourke, 280 Pa.Super. 486, 491, 421 A.2d 826, 828 (1980); Cooper v. Downington School District, 238 Pa.Super. 404, 357 A.2d 619, 621 (1976).
[3] Appellee cites Smith v. Blachley, 198 Pa. 173, 179, 47 A. 985 (1901) and Turtzo v. Boyer, 370 Pa. 526, 528, 88 A.2d 884 (1952) for the proposition that in actions for fraud, the statutory limitation may only be tolled by proof of "fraudulent concealment" of the original fraud. The doctrine of fraudulent concealment appears somewhat narrower than the discovery rule, because it requires a showing that defendant himself prevented plaintiff from discovering the facts by acts of deception which were independent of the acts giving rise to cause of action. However, the doctrine of fraudulent concealment has been relaxed considerably with regard to the deceptive intent of defendant's acts and their independence of the underlying, operative facts (see Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1952); Schwab v. Cornell, 306 Pa. 536, 106 A. 449 (1932); Gee v. CBS, Inc., 471 F. Supp. 600, 617-634 (E.D. Pa., 1979); Hedges v. Primavera, 218 F. Supp. 797 (E.D. Pa., 1963)), so that the practical difference between the two rules is much reduced. Furthermore, Smith and Trutzo are reconcilable with the discovery rule, because both are cases in which the court observed that the fraud was obvious or easily discoverable by a prudent individual.
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121 N.H. 807 (1981)
JOANNE B. HENDERSON
v.
DOUGLAS W. HENDERSON
No. 80-433
Supreme Court of New Hampshire.
September 16, 1981
Kalil & Reams, of Northwood (Earl L. Kalil, Jr., on the brief and orally), for the plaintiff.
Burns, Bryant, Hinchey, Cox Shea, of Dover (Stephen E. Gaige on the brief and orally), for the defendant.
KING, C.J.
This is a libel for divorce brought by the plaintiff, Joanne B. Henderson, against the defendant, Douglas W. Henderson. After a trial before a marital master, the superior court approved the master's recommendations for a decree of divorce and property settlement. After the trial, the defendant moved to set aside the verdict, and the motion was denied. The defendant appeals those portions of the order dealing with the property settlement.
The parties were married in September, 1971, in Strafford, New Hampshire, after which the defendant worked for several months for the telephone company and then for five or six months in a box factory in Dover, New Hampshire. In 1972, the parties moved to *808 Wakefield, Massachusetts, where the defendant worked in a real estate firm, without much success. In 1973, the parties moved to Strafford, New Hampshire, where the plaintiff's parents owned a large parcel of property.
The plaintiff's mother, Cora Snow, operated a summer riding camp for girls in addition to a winter snowmobile lodge on her property. Both the plaintiff and the defendant worked at these activities, and Mrs. Snow provided them with room and board, a vehicle, and approximately $100 per month, and also paid many of their personal expenses. In 1975, the parties became totally responsible for the operation of the camp and trail rides, with the understanding that they would eventually purchase the camp from Mrs. Snow.
In 1976, the parties acquired from Mrs. Snow as joint tenants seventy-nine acres of real property for $20,000, the amount of the then outstanding mortgage. Mrs. Snow let the parties use her horses, saddles and horse equipment, and all of her household furniture at no expense to them. In addition, Mrs. Snow loaned money to them, paid the taxes and insurance on the property, and paid the expenses of maintaining the animals. Mrs. Snow also gave them various items of heavy equipment and a vehicle associated with the operation of the camp.
During the next two years, the parties, concluding that the camp was an unprofitable venture, began to operate a public boarding and training stable. This latter endeavor was also unsuccessful, and, in 1978, the parties listed the property for sale at $180,000. Having received no offers for the property at that price, the parties began selling smaller parcels of the land in the hope of reducing the size of the horse farm to one that would increase its marketability.
The first sale of twenty-six acres realized $13,000; the next sale of five acres realized $10,000; the third and final sale of eleven acres realized $18,500 for a total of $41,500. After disposing of these various parcels of land, the remaining property was offered for sale, and the parties rejected one offer of $85,000.
When these parcels of land were sold, the bank holding the mortgage demanded that $4,000 be paid toward the principal of the mortgage on the property. The remaining proceeds went toward living expenses and improvement of the property. Much of the proceeds went to purchase a dump truck, a skidder, and a wood-splitter to be used by the defendant in a logging business that he began in 1979.
The various business enterprises of the parties all have been *809 either unsuccessful or only marginally profitable. Furthermore, neither party has held outside employment since 1972. During the last several years, prior to the divorce, the parties never made enough money to pay any federal income tax.
In 1980, the marriage disintegrated, and the plaintiff filed for divorce. A hearing was held on August 14, 1980. The Marital Master (Earl J. Dearborn, Esq.) recommended a decree, and the Superior Court (Contas, J.) approved the master's recommendation.
The decree granted the plaintiff a divorce on the grounds that irreconcilable differences had caused the irremedial breakdown of the marriage. The decree granted the plaintiff the marital residence in Strafford and the household furnishings, subject to any encumbrances, an automobile, a nine-horse van, the flat-bed trailer, any horse equipment on the premises not the property of Mrs. Snow, and one of the parties' two ponies. The decree also provided that the plaintiff would assume and pay the mortgage and any tax bills on the real estate, the outstanding bills to various department stores, the oil bill, and one-half of the parties' charge account. The defendant was awarded the dump truck, the skidder, the wood-splitter, and all of his tools, subject to existing liens. The decree also awarded the defendant the personal property that was a gift of his parents and the other of the parties' ponies. The defendant was ordered to pay the remaining debts of the parties. A motion by the defendant to reconsider and set aside the decree was denied.
On appeal, the defendant argues that the master abused his discretion in awarding to the plaintiff the marital residence and certain of the vehicles, which were registered in the defendant's name. He contends that, because the decree leaves the plaintiff with approximately $80,000 in assets and the defendant with approximately $10,000 in assets, this division of the property of the parties in unfair, unjust and unreasonable. We disagree.
[1, 2] The trial court in domestic relations cases has been given broad discretion in determining questions relating to the division of property between the two parties. Goudreault v. Goudreault, 120 N.H. 140, 140, 412 A.2d 736, 736 (1980); Grandmaison v. Grandmaison, 119 N.H. 268, 270, 401 A.2d 1058-59 (1979); Hunneyman v. Hunneyman, 118 N.H. 652, 652-53, 392 A.2d 147, 148 (1978); Azzi v. Azzi, 118 N.H. 653, 655, 392 A.2d 148, 149 (1978). The party on appeal in marital matters must show a clear abuse of discretion by the trial court, Goudreault v. Goudreault supra, 412 A.2d at 736, or that the orders of the trial court were "improper *810 and unfair." Adams v. Adams, 117 N.H. 43, 44, 369 A.2d 196, 197 (1974).
The record shows that the assets awarded to the plaintiff, as well as most of the other assets of the parties, were obtained from the plaintiff's mother, Mrs. Snow, or from funds derived from the sale of her gifts to the parties. Although the parties paid $20,000 for the real estate and business, that sum was far below its market value. The master could rightly determine, as he seems to have done, that Mrs. Snow's sale of the property for the amount of the outstanding mortgage was as a result of the family relationship. The evidence is clear that without the generosity of Mrs. Snow, the property and financial assets of the parties would have been miniscule. Given these facts, the master did not abuse his discretion in awarding the horse farm and equipment to the plaintiff. But see Hanson v. Hanson, 121 N.H. 719, 721, 433 A.2d 1310, 1311-12 (1981).
[3] In carefully reviewing the record and the property settlement in its entirety, and taking into consideration all of the relevant factors, including but not limited to the standard of living established during the marriage and the financial status of the parties, and the contributions by way of money or services to the business and property, we cannot say that the property settlement is unjust, inequitable, or improper. The essential question is whether there is evidence to support the trial court's decree with reference to the division of property. See Buckner v. Buckner, 120 N.H. 402, 404-05, 415 A.2d 871, 873 (1980). We hold that there was such evidence.
[4] The master did not specifically award to either party the 1966 International Star Fleet 2000 tractor or the Model A Ford. During oral argument, however, the plaintiff indicated that she had no objection to the defendant's receiving the Ford; consequently, we remand this case to the trial court for the determination of which party is entitled to the tractor. We are not persuaded by the plaintiff's argument that the court's decree should be read as impliedly granting the tractor to the plaintiff simply because the tractor would be useful in the conduct of the horse farm. We recommend that masters make final disposition of all property which is specifically in contention, especially where either party reasonably and seasonably moves for clarification.
Remanded on one issue for determination; otherwise affirmed.
BATCHELDER, J., did not sit; the others concurred.
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121 N.H. 774 (1981)
ARLINE R. BOYCE, ADMINISTRATRIX OF THE ESTATE OF ROBIN L. BOYCE
v.
CONCORD GENERAL MUTUAL INSURANCE COMPANY & a.
No. 80-303.
Supreme Court of New Hampshire.
September 16, 1981.
*776 Nighswander, Lord, Martin & KillKelley, of Laconia (David J. KillKelley on the brief and orally), for the plaintiff.
Burns, Bryant, Hinchey, Cox & Shea, of Dover (Paul R. Cox on the brief and orally), for Concord General Mutual Insurance Company.
Augustine J. McDonough P.A., of Manchester (Michael B. O'Shaughnessy on the brief and orally), for New Hampshire Merchants Insurance Company and Merchants Insurance Group.
Stark & Peltonen, of Manchester (John E. Peltonen on the brief and orally), for Darrel Macomber and Elwin E. Macomber.
DOUGLAS, J.
This is an interlocutory transfer without ruling on a petition for declaratory judgment to determine insurance coverage. The plaintiff, Arline R. Boyce, is the administratrix of the estate of her son, Robin L. Boyce. The defendants are two insurance companies, Merchants Insurance Group (Merchants) and Concord General Mutual Insurance Company (Concord General), and Darrel Macomber and Elwin E. Macomber, who are the defendants in the underlying negligence actions brought by the plaintiff.
For the purpose of this appeal, the parties have stipulated to the following facts. On July 7, 1976, the defendant Darrel Macomber was operating a pickup truck towing a trailer on Route 25 in Rumney, New Hampshire. The plaintiff's son, who was riding on the trailer, fell from the vehicle and was injured. He died the following day as a result of his injuries. At the time of the accident, Darrel Macomber was a member of the household of his father, Elwin E. Macomber, who was the owner of the truck and trailer. The plaintiff brought negligence actions against both Darrel Macomber and Elwin Macomber.
At the time of the accident, the Macombers had two insurance policies with Merchants: a motor vehicle policy covering the truck, and a homeowner's policy. At that same time, Arthur S. Boyce, Robin's father, had a motor vehicle insurance policy with Concord General. In her declaratory judgment action, the plaintiff seeks to determine the extent of insurance coverage under all three policies.
We address first the question of the amount of coverage provided *777 for Darrel Macomber and Elwin Macomber by the latter's motor vehicle insurance policy with Merchants. The policy in question provides coverage in the amount of $25,000 per person and $50,000 per occurrence for "all sums which the insured becomes legally obligated to pay as damages because of . . . bodily injury . . . [a]rising out of the ownership, maintenance or use of the owned automobile.. . ." Merchants concedes liability to the extent of $25,000 but argues that its liability is limited to that amount. The plaintiff argues that the State financial responsibility law, RSA ch. 268, requires Merchants to provide coverage to the Macombers in an amount greater than $25,000.
[1, 2] RSA 268:18 provides: "No motor vehicle liability policy other than that defined in RSA 268:1 shall be issued or delivered in this state. . . ." RSA 268:1 VII defines a motor vehicle liability policy as
"a policy of liability insurance which provides: (a) indemnity for or protection to the insured and any person responsible to him for the operation of the insured's motor vehicle, trailer, or semi-trailer who has obtained possession or control thereof with his express or implied consent, against loss by reason of the liability to pay damages to others for . . . bodily injuries, including death at any time resulting therefrom, ... to the amount of $20,000 on account of injury to or death of any one person...."
The plaintiff makes two arguments based on that language. First, she argues that the statute requires that Merchants provide separate coverage for the truck and the trailer. We reject that argument. The legislature's use of the disjunctive "or" evinces an intent to require coverage for only one vehicle. See 1A C. SANDS, SUTHERLAND STATUTORY CONSTRUCTION § 21.14 (4th ed. 1972). Coverage is not stacked merely because the trailer and truck are connected. Under condition 4 of the Merchants policy involved in this case, the truck and the trailer are insured as one vehicle. That provision complies with the statute.
[3, 4] The plaintiff also argues that RSA 268:1 VII requires Merchants to provide $20,000 liability coverage for bodily injury for both Darrel and Elwin Macomber. That argument focuses on the language in RSA 268:1 VII that requires a liability policy to provide "protection to the insured and any person responsible to him for the operation of the insured's motor vehicle. . . ." (Emphasis added.) The plaintiff overlooks the statute's further provision *778 that the coverage for that liability must be at least "$20,000 on account of injury to or death of any one person. . . ." (Emphasis added.) Although it may be possible to read the statute as the plaintiff does, that reading does not reflect the legislature's intent in enacting RSA ch. 268. We, therefore, must reject it.
The primary purpose of the financial responsibility law "is not to protect the tort-feasor, but to provide compensation to persons harmed by the negligent operation of motor vehicles." Peerless Ins. Co. v. Vigue, 115 N.H. 492, 494, 345 A.2d 399, 400 (1975). By focusing on the insureds, the plaintiff misreads the statute. The purpose of the law is to provide minimum protection of $20,000 to any one accident victim. Reading the statute with that purpose in mind, it is clear that the object of the language cited by the plaintiff is to ensure that a victim receives that minimum protection no matter what the circumstances of an accident may be. It does not require an insurer to provide $40,000 coverage in those situations that involve vicarious liability.
[5] The Merchants policy involved in this case complies with the statute. It provides bodily injury coverage in the amount of $25,000 per person and $50,000 per occurrence. Elwin and Darrel Macomber are both insured under the policy as "the named insured and any resident of the same household." The policy provides that bodily injury liability coverage "applies separately to each insured against whom claim is made or suit is brought, but the inclusion herein of more than one insured shall not operate to increase the limits of the company's liability." Thus, Merchants liability is limited by the policy to $25,000 for bodily injury to any one person. That limitation is not raised when a person brings suit based on vicarious liability.
We next consider whether the plaintiff is entitled to uninsured motorist coverage under either her husband's insurance policy with Concord General or the Macombers' policy with Merchants.
The two policies at issue contain nearly identical language by which the insurer agrees to pay "all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured . . . [motor vehicle] because of bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured [motor vehicle]." (Emphasis added.) The plaintiff's decedent was an insured under the Concord General policy as a relative of the named insured, his father, and he was an insured under the Merchants policy as a person occupying a vehicle insured under the policy.
*779 [6-8] Nevertheless, uninsured motorist coverage is not effective with every accident but only with those involving an uninsured motor vehicle, as defined by a particular policy or by New Hampshire law. Both policies at issue contain parallel provisions defining an uninsured motor vehicle or automobile to include vehicles insured under a liability policy where the insurer has denied coverage. Because Merchants contended that its liability under the policy was limited to $25,000, the plaintiff argues that Merchants denied coverage, thus bringing into play the uninsured motorist provisions of both policies. That argument misstates Merchants position. Rather than denying coverage under the policy, Merchants merely questioned the extent of its obligation. Because Merchants did not deny liability, the motor vehicle is not an uninsured vehicle within the definition of those policies.
Nor is the vehicle an uninsured vehicle under RSA 268:15-a V. That paragraph defines an uninsured vehicle as one insured for less than the statutory minimum, which at the time was set by RSA 268:1 VII at $20,000 for injury to or death of any one person. See Vigneault v. Travelers Ins. Co., 118 N.H. 75, 79-80, 382 A.2d 910, 913-14 (1978). We have already determined, and Merchants concedes, that the Merchants policy provides liability coverage of $25,000. Because the accident did not involve an uninsured motor vehicle, the plaintiff is not entitled to uninsured motorist coverage under either policy.
Finally, we address the question whether Darrel and Elwin Macomber are entitled to liability insurance coverage under the Merchants homeowner's policy issued to Elwin Macomber. Before the issue of coverage under the homeowner's policy was transferred to this court, a hearing was held to determine the understanding between Elwin Macomber and Stanley Shmishkiss, the Merchants local agent, on the policy's coverage of the trailer. The Master (Paul A. Gruber, Esq.) recommended a finding that "at the time the homeowner's insurance was issued, Mr. Macomber believed that it afforded coverage for the farming equipment, specifically the trailer involved in the accident, and that he was not advised by Mr. Shmishkiss that it did not, even though Mr. Shmishkiss knew or should have known that a limited farming operation was carried on by Mr. Macomber." The Superior Court (Johnson, J.) approved the master's recommendation.
[9] The homeowner's policy at issue in this case contains a special endorsement to the personal liability and medical payments coverages, which provides:
"This policy covers motorized maintenance equipment *780 pertaining to the service of the premises, if not subject to motor vehicle registration, which is designed for use principally off public roads. This coverage applies while the equipment is being used on or away from the premises."
(Emphasis added.) The plaintiff argues that this clause provides coverage for the trailer involved in the accident. That clause is not ambiguous; it does not provide coverage for the trailer. "Motorized maintenance equipment" clearly refers to machinery such as rider mowers and tractors, not to equipment that becomes "motorized" when attached to another vehicle.
[10] Usually this would end our inquiry. However, as summarized in Robbins Auto Parts, Inc. v. Granite State Ins. Co., 121 N.H. 760, 435 A.2d 507 (1981), coverage may also be found if "`the parties' prior dealings would lead the insured to form a reasonable belief that the policy provided him the claimed coverage' . . . or [that] `reliance on the [insurer's] agent's assurances was reasonable' so as to estop the company from denying coverage." (Citations omitted.) In this case, there were such circumstances surrounding Mr. Macomber's purchase of the homeowner's policy.
[11, 12] Although we do not have before us a transcript of the hearing before the master, it appears that Mr. Macomber testified that at the time he came to Mr. Shmishkiss' agency, he had in effect an insurance policy covering both buildings and equipment. When he came to Mr. Shmishkiss, he asked that coverage under his existing policy be duplicated. Mr. Shmishkiss testified that he understood that those were his instructions, and did not testify that the original policy did not cover the trailer. The original policy is not in evidence, but the master found that Mr. Macomber believed the policy covered the trailer and that Mr. Shmishkiss did not tell him it did not. From that finding, we conclude that the master accepted Mr. Macomber's statement that he believed his former policy covered the trailer. The master was entitled to accept that testimony. See Murphy v. Bateman, 121 N.H. 748, 750, 433 A.2d 1330, 1332 (1981). Although the master did not expressly find that Mr. Macomber's belief was reasonable, that finding is implicit. Based on the circumstances that existed at the time the insurance policy was drawn up, we conclude that the Macombers are entitled to liability coverage under the homeowner's policy.
In summary, we conclude that: (1) Merchants liability for coverage to Darrel and Elwin Macomber under its motor vehicle policy is limited to $25,000, (2) the plaintiff is not entitled to uninsured *781 motorist coverage under either the Merchants policy with the Macombers or her husband's policy with Concord General, and (3) Darrel and Elwin Macomber are entitled to liability coverage under the Merchants' homeowner's policy.
Remanded.
BATCHELDER, J., did not sit; the others concurred.
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435 A.2d 395 (1981)
Earline MARTIN, a/k/a Earline Taylor, Appellant,
v.
UNITED STATES, Appellee.
James L. KING, Appellant,
v.
UNITED STATES, Appellee.
Nos. 80-457, 80-585.
District of Columbia Court of Appeals.
Argued June 4, 1981.
Decided September 3, 1981.
*396 Jerry L. Dier, Clarksville, Md., appointed by this court, was on the brief for appellant Martin.
Frances B. Aubrey, Washington, D.C., appointed by this court, for appellant King.
Peggy M. Tobolowsky, Asst. U. S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D.C., were on the brief for appellee.
Before KELLY and KERN, Associate Judges, and PAIR, Associate Judge, Retired.
PER CURIAM:
Appellants challenge their convictions for forgery and uttering on the grounds that their acts of signing their own names to blank money orders known by them to have been stolen do not constitute forgery within the meaning of D.C.Code 1973, § 22-1401.[1]
*397 There was evidence that on the evening of November 6, 1978, a young woman purchased two American express money orders from a Peoples Drug Store in the amounts of $73.09 and $36.00 respectively. En route to her home she was robbed and her purse containing the money orders and approximately $1800.00 worth of travelers checks was taken. The money orders were still blank when the robbery occurred.
Appellant Martin testified at trial that she obtained possession of two money orders from a purse that she recovered after yelling at and frightening away a group of youths who were robbing a woman.[2] Appellants stipulated at trial that on November 7th Martin filled in her name and address as sender and entered the name of appellant King as payee on both money orders taken from the robbery victim's possession. Martin dated the money orders November 4th and November 6th. On November 7th, appellant King cashed the money orders by endorsing them on the back at the bank where he and appellant Martin had a joint account.
Appellants Martin and King were living together at the time of these occurrences. Appellant King testified that he had received the money orders from a third party. It was stipulated, however, that the money orders in appellants' possession were those stolen from the robbery victim.
Appellants were each charged with two counts of forgery, two counts of uttering and one count of receiving stolen property in violation of D.C.Code 1973, §§ 22-1401 and -2205. Both appellants were found guilty on all counts by a jury. Appellant Martin was sentenced to three to nine years on the forgery counts, two to six years on the uttering counts, and ninety days on the receiving stolen property count, all to be consecutive sentences. The execution of Martin's sentence was suspended with a five-year probation after serving ninety days. Appellant King was sentenced to three to nine years on the forgery counts, one to three years on the uttering counts, and one hundred twenty days on the receiving stolen property count, all to be consecutive sentences. There was no suspension or probation in his case.[3]
Appellant King raises a threshold issue, arguing a fatal discrepancy between the wording in the indictment and in the statute. The indictment charges him in the conjunctive form, i. e., "falsely made and altered the handwritten entries," whereas the statute reads in the disjunctive form, i. e., "falsely makes or alters any writing. . . ." He contends that the government was obligated to prove both the false making and the altering as charged in the indictment. We have approved, however, the practice of conjunctive pleading of a statute proscribing several acts, any one of which can be the basis of a proper conviction. United States v. Miqueli, D.C.App., 349 A.2d 472 (1975); Super.Ct.Cr.R. 7(c). Appellant cannot successfully contend that this practice is improper so as to defeat the clear intent of Congress as expressed in the statute. Accordingly, the variance argument of appellant King is without merit.
The primary contention of appellants on appeal is that there can be no forgery, and consequently no uttering here because they signed their true names to the blank money orders taken from the robbery victim's possession.[4]
Forgery is a statutory and not a common law crime in the District of Columbia. Forgery and uttering are proscribed by a single *398 statute, D.C.Code 1973, § 22-1401. (See note 1.) We noted in Ashby v. United States, D.C.App., 363 A.2d 685 (1976), that "[w]hile some jurisdictions have adopted such narrowing prerequisites [such as the accused assuming the identity of the fictitious individual and some reliance thereupon], the law of the District of Columbia has been construed more broadly. . . ." Id. at 687.
The essential elements of the statutory crime of forgery in the District of Columbia are: (1) false making or other alteration of some instrument in writing, (2) a fraudulent intent, and (3) the instrument must be apparently capable of effecting a fraud. Hall v. United States, D.C. App., 383 A.2d 1086 (1978); Frisby v. United States, 38 App.D.C. 22 (1912). See also, Bar Association of the District of Columbia Instruction, Criminal Jury Instructions for the District of Columbia, No. 4.53 (3d ed. 1978).
Appellants claim that the first essential element was not satisfied because the insertion of their true names did not constitute a false making or alteration of the blank money orders purchased by the robbery victim. We reject that contention. It is the unauthorized completion of the stolen money orders which renders the instruments "falsely made or altered." Absent the true owner's authority to complete the blank money orders, the insertion by another of any information onto those orders is a false making or alteration of the documents in violation of the statute. We reach such conclusion in the light of previous holdings in this jurisdiction that instruments were falsely made or altered in a variety of factual contexts. See Lieberman v. United States, 102 U.S.App.D.C. 310, 253 F.2d 46 (1958) (a promissory note which was genuinely executed, but on which the true parties' signatures were obtained by trickery); Yeager v. United States, 59 App.D.C. 11, 32 F.2d 402 (1929) (company checks which had been endorsed by agents either for a different purpose from that authorized or in the absence of authority).
In sum, courts in this jurisdiction have declined to apply the narrow common law definition of forgery which required a fictitious entry and which appellants now urge upon us, Lieberman and Yeager, supra.[5] The court commented in applying the statute in United States v. Briggs, 54 F. Supp. 731, 732 (D.D.C. 1944), that "we are not here dealing with common law forgery but with a statute of almost limitless scope." Id.
Thus, we conclude that appellants, by executing the money orders under the circumstances here, made a false writing or alteration which satisfied the precise language of the statute.
Affirmed.
NOTES
[1] This statute provides in pertinent part:
Whoever, with intent to defraud or injure another, falsely makes or alters any writing. . . which might operate to the prejudice of another, or . . . utters, . . . or attempts to . . . utter . . . as true and genuine, any paper so falsely made or altered, knowing the same to be false or forged, with the intent to defraud. . . another, shall be imprisoned for not less than one year nor more than ten years.
[2] Appellant Martin was referred to throughout the proceedings as Earline Taylor, her married name and the name she used negotiating the money order.
[3] Appellant King contends that the sentence given to him was so disproportionate to that given to Martin as to constitute cruel and unusual punishment in violation of the Eighth Amendment. It is clear, however, that the sentence was lawfully imposed and within the statutory maximum, and therefore is not subject to review on appeal. Walden v. United States, D.C.App., 366 A.2d 1075 (1976).
[4] Appellants do not challenge their convictions based upon receiving stolen property. The other issues that appellants raise on this appeal are upon this record without merit.
[5] Appellants' reliance upon such cases as Gilbert v. United States, 370 U.S. 650 (1962), and Greathouse v. United States, 170 F.2d 512 (4th Cir. 1948), is misplaced. Such cases adopted a narrow view of the crime of forgery whereas our statute proscribing forgery has been broadly construed. The 10th Circuit in United States v. Sparrow, 635 F.2d 794 (10th Cir. 1980), also strictly construed a federal forgery statute, 18 U.S.C. § 2314, holding that even though the content of a certificate of title was false, it was precisely what it purported to be and therefore was not forged or falsely made.
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994 So.2d 312 (2008)
OLIPHANT
v.
STATE.
No. 2D06-3295.
District Court of Appeal of Florida, Second District.
October 31, 2008.
Decision without published opinion. Affirmed.
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343 S.W.2d 266 (1961)
Raymond Oscar WILLIAMS, Appellant,
v.
STATE of Texas, Appellee.
No. 32831.
Court of Criminal Appeals of Texas.
February 22, 1961.
*267 Edward L. Lasof, Donald Lasof, Houston, for appellant.
Dan Walton, Dist. Atty., Carl E. F. Dally and Charles C. Castles, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
The prior opinion is withdrawn and the following is substituted therefor.
The conviction is for murder; the punishment, twenty-five years.
The testimony of the state shows that during the morning of March 12, 1959 appellant's brother Robert Williams, the deceased and several other colored men, were engaged in a dice game. During the game Robert accused someone of taking $5 of his money. He did not accuse anyone by name, but pulled his pistol, pointed it toward the deceased saying, he wanted his money as he backed toward the door. After the proprietor heard Robert's statement, he gave him $4.90 and Robert left.
About 3 P.M. the same day, the deceased entered a pool hall where Robert and appellant were. He told Robert that he owed him $5 which Robert denied. The deceased grabbed Robert by the shirt and while they were arguing and scuffling appellant told the deceased that "If Robert owes you $5 I will pay it", then the proprietor ordered them to leave. While they were in a clinch on the outside, Robert had some money in his hand and the deceased was saying, "Pay me my money". At this time the appellant, while waving a pistol, told his brother Robert to move back. When Robert moved back from the deceased, a bystander told appellant, who was still waving his gun, not to shoot the deceased, and appellant replied, "You hush, because I will shoot you to", and then appellant shot the deceased, and after the deceased had turned and was walking away, the appellant again shot him. Then the appellant and Robert walked away from the scene; and the appellant, about two hours later, told the witness Phelps that "He had shot someone" and showed her a pistol.
Edward Turner testified without objection that later that night appellant was in his cafe pointing a pistol at another person and that he called the police. Officer Ferris testified that when he arrived, he saw the appellant in a house next door to the cafe and saw him place something beside a door which upon recovery was shown to be a .22 pistol containing six live and three spent cartridges. The pistol was identified at the trial as the one used to shoot the deceased.
An examination of the deceased's body by a physician revealed three gunshot wounds; two in the right abdomen and the third in the left buttock which entered from the back. The physician further testified that death resulted from the two gunshot wounds in the abdomen.
The appellant insists that the trial court erred in refusing to charge the jury on the law of justifiable homicide to prevent robbery, self-defense, and defense of another. *268 The state takes the position that the refusal to so charge was not error because the evidence does not raise any of these issues.
No weapons were exhibited by the deceased at anytime and none were found on his body or at the scene.
Appellant did not testify but called his brother Robert and several other witnesses. Robert's testimony shows that he owned the.22 pistol and had it with him during the morning dice game when the deceased took $5 of his money and when he pulled his pistol and demanded his money the proprietor gave him $4.90 and he left. Robert and appellant returned that afternoon and engaged in another dice game, and Robert had several dollars in his hand when the deceased entered the room with a paper bag in his hand and began cursing him, and told him that he had thought about the money the proprietor had given him and he had come back to take it, and put the paper bag in his pocket and grabbed him. At this point appellant told the deceased that if Robert owes you $5 he (appellant) would pay it, but Robert then said that he did not owe him any money. While the deceased was forcing him outside, Robert's pistol began to slip from him and the appellant took it. While Robert and the deceased exchanged blows, Robert placed the money in his left coat pocket which the deceased tore off, but Robert did not see the money fall out.
Robert further testified that the appellant had the pistol and was present while he and the deceased had been "scuffling" for twelve or fifteen minutes. In answer to his counsel's questions about what happened after they got through scuffling, he stated that after "we shook loose" the deceased was standing about 16 or 20 feet away and then started back towards him when the appellant said to the deceased: "`Why don't you go ahead on. Don't no one want to hurt you'". He further testified that the deceased, while advancing, made a motion for his right hip pocket and then he heard three rapid shots; and the appellant, who was standing about 2 feet to his right, and the deceased were facing each other but the deceased never got closer than "twenty or sixteen feet", and after the shots were fired, he and the appellant walked away.
Appellant's witness, C. J. Crawford, testified that he saw the deceased and Robert scuffling as he entered a cafe, heard a lady say "don't shoot", then heard a shot and when he returned to the street he saw the deceased running with his back to the man with the pistol who shot twice more at the deceased. He further testified that he did not see the deceased put his hand in Robert's pocket or rip the pocket off, and did not see any pistol on or near the deceased.
A. S. LaMothe, called by the appellant, testified that the deceased and the appellant were wrestling over a gun when he first saw them, and the deceased was trying to hold the arm of the hand in which appellant had the gun; that they were about 18 inches apart at the time of the first shot and on the second shot the deceased turned loose and ran; and he did not see the deceased with any weapon.
The evidence fails to raise the issue that when he shot the deceased, appellant believed himself or anyone present to be in danger of death or serious bodily injury at the hands of the deceased, or that appellant shot the deceased because of any robbery. Therefore, the failure to give the requested charges was not error.
The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.
Opinion approved by the Court.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEVADA BELL,
Plaintiff-Appellee,
v.
PAC-WEST TELECOMM, INC., No. 01-15790
Defendant-Appellant,
and D.C. No.
CV-99-00492-ECR
NEVADA PUBLIC UTILITIES ORDER
COMMISSION; JUDY M. SHELDREW,
and MICHAEL A. PITLOCK,
Commissioners,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding
Argued and Submitted
January 12, 2005—San Francisco, California
Filed January 24, 2005
Before: John T. Noonan, Carlos T. Bea, Circuit Judges,
and Robert E. Jones.*
COUNSEL
D. Anthony Rodriguez, San Francisco, California, for the
defendant-appellant.
*The Honorable Robert E. Jones, United States Senior District Judge
for the District of Oregon, sitting by designation.
1013
1014 BELL v. PAC-WEST TELECOMM
Kevin M. Fong, San Francisco, California, for the plaintiff-
appellee.
ORDER
The judgment of the district court is AFFIRMED.
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2005 Thomson/West.
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343 S.W.2d 263 (1961)
Frank Silas WILLIAMS, Appellant,
v.
STATE of Texas, Appellee.
No. 32172.
Court of Criminal Appeals of Texas.
February 22, 1961.
John Cutler, Houston, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Presiding Judge.
Notice of appeal having been entered of record, the appeal is reinstated and our prior opinion and orders are withdrawn.
The offense is burglary; the punishment, 7 years.
The evidence shows that during the night of October 9th the Wilcox Drug Store, in Anahuac, was burglarized and an assortment of narcotics, a radio, a wrist watch, and other merchandise were stolen.
Entry into the building was made through the roof by boring holes and removing a portion thereof.
Appellant and one James Lyles were arrested in Houston the following afternoon when they were seen in the automobile which had been parked near the drug store, description and license number of which had been reported to Houston officers.
Lyles made a statement and showed the officers where the property introduced in evidence and identified as that taken from the Wilcox Drug Store, and some tools, were hidden in the weeds on Brian Bayou Road.
*264 Appellant's confession made to County Attorney Jenson was introduced in evidence which reads, in part:
"James Lyles and myself left Houston about 10:00 P.M. on Friday, October 9, 1959, and from a drugstore located at Navigation and Wayside. We came to Anahuac in Chambers County, Texas, on State Highway No. 73. James Lyles was driving a 1950 Studebaker owned by Doris Jean Tidwell who I believe lives in Houston. This automobile was borrowed by James Lyles. We stopped several places to have a beer and we arrived in Anahuac, Texas, about 12:30 A.M. on Saturday, October 10, 1959. We drove around and seen the drug store. We got out of the car and went to the back of the store. We climbed up the drain pipe. James Lyles took the skylight out and bored a hole through the roof with a brace and bit. We went into the drugstore. We took all the narcotics we could find. We took a portable radio, cigrette lighters and a watch, necklaces and other costume jewelry. There were two safes in the drugstore. The door to one safe was open. We didn't fool with the locked safe. James Lyles and myself climbed out of the drugstore through the hole we had drilled in the roof. James Lyles and myself got into the 1950 Studebaker automobile and went toward Houston on State Highway 73 and spent the night at a motel near Greens Bayou or Channelview. I don't remember the name of the motel. James Lyles told me he got up about 9:00 A.M. and got some clothes out of the cleaners. James Lyles came back after me about 12:30 P.M. on Saturday, October 10, 1959. We sat around the motel until about 3:00 P.M. and started back to Houston. We stashed the stuff we had taken from the Wilcox Drug Store in Anahuac, Chambers County, Texas, on the side of a ditch out close to Highlands resorvoir. James Lyles and I were arrested right after we had stashed the stuff at a drive-in grocery by two Harris County deputy sheriffs. I did not have the permission of Mr. C. C. Wilcox or anyone else to break and enter his drug store and take the narcotics, radio and the other things that James Lyles and I carried off."
Appellant complains that the court erred in failing to charge the jury on the issue of insanity as a defense and on temporary insanity.
The burglary was committed on the night of October 9, 1959. Appellant was arrested the following day and two or three days later was released on bond. Trial was had on March 7, 1960.
The evidence which appellant contends raised the issue of insanity at the time the burglary was committed is that of his mother who testified that he was subject to epileptic seizures which lasted for five or ten minutes: "He gets to where he doesn't know a thing. He doesn't even know me. Q. For how long? A. I would say two hours anyway."
Mrs. Williams testified that he had a seizure a week before the trial; that about a month before the trial, and again three weeks later he cut his wrists; that he had been having epileptic seizures two years; that the last one was in the doctor's office and lasted 10 or 15 minutes; that he became unconscious when he had such seizures.
It will be noticed that the evidence does not suggest that appellant was in a seizure or was suffering the effects of a seizure at the time he went from Houston to Anahuac, climbed up the drain pipe to the roof of the drug store, took all the narcotics he could find as well as other property, and climbed out through the hole in the roof.
Mrs. Williams' testimony, on the other hand, shows that he could not have committed the burglary had he at the time *265 been in a seizure or suffering from the effects of a recent seizure.
The issue of insanity at the time of the burglary not being raised, the trial court did not err in failing to instruct the jury upon the law of insanity as a defense. Cook v. State, 71 Tex. Crim. 532, 160 S.W. 465. See also Leeper v. State, 29 Tex. App. 63, 14 S.W. 398.
Appellant contends that the court erred in not permitting his counsel to ask Mrs. Williams whether or not she had an opinion as to whether appellant knew the difference between right and wrong.
The question to which the State's objection was sustained was: "Mrs. Williams, from what you have observed and seen your son do under these conditions, do you have an opinion as to whether or not he knows the difference between right and wrong at the time he may be seized with these spells you testified to?"
Mrs. Williams having testified that he lost consciousness and that "he gets to where he doesn't know a thing. He doesn't even know me" during a seizure and for some two hours afterwards, the court's ruling was not error calling for reversal. This is especially so because appellant was not in a seizure or suffering from the effects of a recent seizure at the time of the burglary or at the time of the trial.
The evidence shows that appellant and Lyles were acting together in the burglary and theft, hence were co-conspirators. When Lyles made a statement to the officers and pointed out the stolen property, and the tools used, the property jointly stolen had not been finally disposed of. We overrule the contention that the stolen property and tools recovered were inadmissible. We also overrule the contention that an issue should have been submitted to the jury as to whether or not a conspiracy to commit the burglary and theft existed.
The remaining claim for reversal is the contention that the court erred in overruling appellant's motion for new trial based upon the fact that a member of the jury separated from other jurors and visited the drug store during the trial.
Mrs. Pollard, the only woman on the jury, testified that the trial lasted two days; that on the second day she went to "Clores" for lunch, accompanied by a lady deputy sheriff; that after lunch they went to the post office and to Wilcox' Drug Store where she saw appellant's counsel:
"Q. You were sitting at the table? A. Miss Moore and I, and I believe a nurse.
"Q. How long did you stay there? A. Approximately fifteen minutes."
She testified that the drug store was the place that was burglarized; that she did not discuss the case and there was no conversation about the case at all; that the officer was with her at all times; that she did not go back to where prescriptions are filled; that she did not talk to Mr. Wilcox, the owner, and did not know him; and did not inspect the roof or observe anything about the prescription department while in the drug store.
In the absence of any showing that the juror acquired information material to the case, or of any discussion or wrongful use of anything she saw at the drug store, the juror's visit to the drug store did not require that a new trial be granted. Wooten v. State, 111 Tex. Crim. 226, 13 S.W.2d 87; 42 Tex.Jur. 415, Trial-Criminal Cases, Sec. 326.
The motion for new trial alleged that the juror "was permitted to sit at a table with the matron in charge and two other persons, and there visited and carried on a conversation with said persons."
To sustain such allegation appellant interrogated the juror, but made no inquiry as to whether she "visited or carried on a conversation" with anyone, except that *266 he brought out from the juror her testimony that there was no conversation about the case at all, and that she did not discuss the case with anyone while she was in the drug store.
The separation of a part of the jury with an officer is not cause for reversal if no probable injury is shown. Dukes v. State, 162 Tex. Crim. 71, 282 S.W.2d 235; Branch's Ann.P.C.2d Ed., Sec. 601.
No reversible error appearing, the judgment is affirmed.
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343 S.W.2d 177 (1960)
STATE of Missouri, at the relation of Lillian E. HARLINE, James J. Harline, Harry W. Wintermute, Lucia Wintermute, George G. Kelly, Zakey Kelly, Robert J. Ingraham and Courtenay F. Ingraham, Appellants,
v.
PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent.
No. 23215.
Kansas City Court of Appeals, Missouri.
December 5, 1960.
*179 R. Jay Ingraham and John F. Ingraham, Kansas City, for appellant.
Glenn D. Evans and Thomas J. Downey, Morris E. Osburn, Jefferson City, F. L. Thompson and Thos. J. Conway, Jr., Kansas City, for respondent.
CROSS, Judge.
This appeal is from a judgment of the Circuit Court of Cole County, on review proceedings, affirming an order of respondent, Public Service Commission of Missouri, dismissing a complaint filed by appellants, resident landowners of Jackson County, Missouri.
It was alleged in the complaint that the Missouri Public Service Company, a public utility corporation supplying electric current to consumers in Jackson County and other areas in Missouri, hereinafter sometimes designated as "the company", was preparing to locate, maintain and operate a 69,000 volt electrical transmission line in Jackson County from Martin City to Lee's Summit, and to interconnect it with the lines of the Kansas City Power & Light Company, and to acquire, by condemnation, right of way easements upon and over appellants' lands, all without a certificate of public convenience and necessity and without the Commission's permission and approval as required by law.
Complying with the prayer of the complainants for an order upon the company to show cause why it should not desist from the alleged acts, the Commission ordered the company to satisfy the matters of complaint or make answer in writing.
The company filed answer claiming authority for its acts under (1) the Commission's order entered in Public Service Commission Case No. 9,470, on January 18, 1938, granting a certificate of convenience and necessity to a predecessor company, the Missouri Public Service Corporation, and (2) the Commission's order in Case No. 11,892, approving the transfer of corporate rights from the Missouri Public Service Corporation to the Missouri Public Service Company.
Appellants introduced no evidence at the hearing except the record in Case No. 9,470 and the report and order in Case No. 11,892. The company's evidence disclosed it had commenced construction of the eight mile transmission line at a cost of $250,000. The Commission determined that the company was authorized to construct the line under the certificate of convenience and necessity issued in Case 9,470, and that no additional authority was necessary to comply with the statutes governing the matter. Whereupon the Commission dismissed the complaint and denied appellants' motion for rehearing.
The Commission's ruling was certified to and reviewed by the Circuit Court of Cole County, Missouri. The judgment of that court affirmed the order of dismissal made by the Commission. An appeal from the judgment was granted to the Missouri Supreme Court. Appellants invoked that court's exclusive jurisdiction by allegations that the Commission's order of dismissal and its orders in Cases No. 9,470 and No. 11,892 are in violation of the 1875 and 1945 Constitutions of Missouri and the Constitution of the United States.
Finding that no question of constitutional law is presented or preserved for appellate review, the Supreme Court has denied jurisdiction of this appeal and transferred the cause to this court.
Although the order of dismissal in Case No. 13,768 gave rise to this appeal, the critical factor in the controversy is Case No. 9,470. When that proceeding was filed in 1937, the predecessor Missouri Public Service Corporation was operating as an electric utility in certain cities and towns of Jackson County under franchise authority *180 and the Commission's certificate of convenience and necessity. The certificate was limited to those municipalities and allocated no territory beyond their borders.
The utility was also serving some additional patrons in nearby rural areas, by request and upon application. Each extension to those patrons was made under authority of a separate Commission certificate, issued upon separate application, notice and hearing.
Under those circumstances, and with applications on file for service requiring extended lines, the utility filed in Case No. 9,470 its application for a certificate of convenience and necessity allocating to it a designated service area in rural Jackson County, and other counties for which it had obtained county franchise authority.
Upon notice and hearing, the Commission made findings that the authority sought by the application would be beneficial to the public and should be granted, and entered its order, in part, as follows: "That the Missouri Public Service Corporation be and is hereby authorized to construct, maintain and operate electric transmission lines and distribution systems over, along and across the highways of the Counties of Jackson * * *, with authority to furnish electric service to all persons in the area for which this certificate is granted and in conformity with the extension rules that the applicant, from time to time, may have on file with this Commission and in effect". The order contains other provisions of limiting and regulatory nature.
Appellants charge the trial court with error in affirming the order of dismissal for the alleged reason that such action was arbitrary, unreasonable, unlawful and in violation of constitutional guarantees. The points briefed by appellants will be disposed of without deciding' a constitutional question. Appellants made no claim that any statute is unconstitutional, but say that the Commission's acts and orders are not in compliance with statutory provisions. Since the jurisdiction of the Commission is fixed by statute, and since the validity of that statute is not attacked, the case may be properly decided by a construction of the statutes for the purpose of determining whether or not the Commission exceeded its statutory authority. State ex rel. Orscheln Brothers Truck Lines, Inc. v. Public Service Commission, 338 Mo. 572, 92 S.W.2d 882, loc. cit. 884(4, 5). These views have been expressed by the Supreme Court in ruling that no constitutional question has been raised or preserved.
The basic issue for decision is: Must a public utility obtain an additional certificate of convenience and necessity from the Commission to construct each extension or addition to its existing transmission lines and facilities within a territory already allocated to it under a determination of public convenience and necessity?
That issue is raised by appellants' principal contention that the 1938 certificate of convenience and necessity conferred no authority upon the company to construct the planned transmission line. They insist that the law required an additional, specific order of approval from the Commission for that particular line, or any other additional line, to be granted only upon the company's application, due notice and hearing. Appellants argue that the Commission's order in Case No. 9,470 is null and void, ab initio, as an unlawful attempt to surrender and re-delegate the state's police powers by abandoning its statutory duties of regulation to the utility company; and, that subsequent orders based upon it are also void.
All corporate powers of the Missouri Public Service Commission are derived from the state by virtue of its charter, which includes all enacted statutes. The company derives from Section 351.385, V. A.M.S. all powers necessary or convenient to effect any or all of the purposes for which it was formed. The following specific powers are conferred upon it by Section 393.010: "* * * full power to manufacture and sell and to furnish * * * *181 electricity * * * and * * * to lay conductors for conveying * * * electricity * * * through the streets, alleys and squares of any city * * *" and "to set their poles, piers, abutments, wires and other fixtures along, across or under any of the public roads, streets and waters of this state * * *".
Since 1938, the company and its predecessor have exercised those corporate powers by operating a public utility and furnishing electricity to the inhabitants in an area of Jackson County under a Public Service Commission certificate of convenience and necessity. None of those powers have been derived from the Missouri Public Service Commission.
The certificate of convenience and necessity granted no new powers. It simply permitted the company to exercise the rights and privileges already conferred upon it by state charter and municipal consent. State ex inf. Shartel ex rel. City of Sikeston v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394, 89 A.L.R. 607. The certificate was a license or sanction, prerequisite to the use of existing corporate privileges.
The company had the legal duty to serve the public in the certificated Jackson County area. The corporate charter is a contract which impliedly obligates the corporation to furnish the service for which it was created to render. Section 393.130 specifically requires that "every electrical corporation * * * shall furnish and provide such service instrumentalities * * * as shall be * * * adequate * * *". The Jackson County franchise implies an obligation to serve the public in return for the privileges granted by it. The certificate of convenience and necessity is a mandate to serve the area covered by it, because it is the utility's duty, within reasonable limitations, to serve all persons in an area it has undertaken to serve. State ex rel. Ozark Power & Water Co. v. Public Service Commission, 287 Mo. 522, 229 S.W. 782; State ex rel. Kansas City Power & Light Co. v. Public Service Commission of Missouri et al., 335 Mo. 1248, 76 S.W.2d 343; State ex rel. Federal Reserve Bank of Kansas City v. Public Service Commission, 239 Mo.App. 531, 191 S.W.2d 307; and May Department Stores Co. v. Union Electric Light & Power Co., 341 Mo. 299, 107 S.W.2d 41.
It seems clear that the company could perform its duty to render electric service to all inhabitants of the rural area concerned only by a process of extending and building new lines and facilities as required, which the evidence shows has been done almost daily since 1938. It appears further that the company and its predecessor have had full and adequate corporate powers to perform that duty. If additional commission authority other than the area certificate be necessary, such requirement must affirmatively appear in the statutes.
The Missouri Public Service Commission is an administrative body of limited jurisdiction, created by statute. It has only such powers as are expressly conferred upon it by the statutes and reasonably incidental thereto. State ex rel. and to Use of Kansas City Power & Light Co. v. Buzard, 350 Mo. 763, 168 S.W.2d 1044.
Those powers are purely regulatory. The dominating purpose in the creation of the Public Service Commission was to promote the public welfare. To that end the statutes provided regulation which seeks to correct the abuse of any property right of a public utility, not to direct its use. Exercise of the latter function would involve a property right in the utility. The law has conferred no such power upon the Commission. State ex rel. Kansas City v. Public Service Commission of Missouri, 301 Mo. 179, 257 S.W. 462.
The utility's ownership of its business and property includes the right of control and management, subject, necessarily, to state regulation through the Public *182 Service Commission. The powers of regulation delegated to the Commission are comprehensive and extend to every conceivable source of corporate malfeasance. Those powers do not, however, clothe the Commission with the general power of management incident to ownership. The utility retains the lawful right to manage its own affairs and conduct its business as it may choose, as long as it performs its legal duty, complies with lawful regulation and does no harm to public welfare. See State ex rel. City of St. Joseph v. Public Service Commission, 325 Mo. 209, 30 S.W.2d 8. Also, see State of Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Commission of Missouri, 262 U.S. 276, 43 S. Ct. 544, 67 L. Ed. 981.
A primary function of the Commission in its regulation of electric utilities is to allocate territory in which they may render service. The Commission is empowered by statute to pass upon the question of public necessity and convenience (1) for any new company or additional company to begin business anywhere in the state, or (2) for an established company to enter new territory. Peoples Telephone Exchange v. Public Service Commission, 239 Mo.App. 166, 186 S.W.2d 531.
Those powers were created in 1913 by the enactment of present Section 393.170, V.A.M.S., which has since remained in effect, without change. The section is quoted, in part, as follows:
"1. No * * * electrical corporation * * * shall begin construction of a * * * electric plant * * * without first having obtained the permission and approval of the commission.
"2. No such corporation shall exercise any right or privilege under any franchise hereafter granted * * * without first having obtained the permission and approval of the commission * * *.
"3. The commission shall have the power to grant the permission and approval herein specified whenever it shall after due hearing determine that such construction or such exercise of the right, privilege or franchise is necessary or convenient for the public service. The commission may by its order impose such condition or conditions as it may deem reasonable and necessary. Unless exercised within a period of two years from the grant thereof authority conferred by such certificate of convenience and necessity issued by the commission shall be null and void."
In 1914, one year after enactment, the Commission construed Section 393.170. In Missouri Valley Realty Co. v. Cupples Station Light, Heat & Power Co., 2 Mo. P.S.C. 1, the Commission determined that when a utility is legally serving the public under a certificate of convenience and necessity, the law does not require a certificate for every extension of its lines to render additional service, and that "as to electrical corporations (referring to those already constructed and operating) the only certificate of permission and approval required from the Commission is that required before the company shall 'begin construction of its plant'".
Since 1914 the Commission has executed certificates of convenience and necessity in accordance with those views. It has consistently followed the practice of issuing "area certificates" granting defined operating territory to utilities, including the certificate in Case No. 9470.
The legal construction of Section 393.170 by the Commission and followed for 46 years in executing its terms is strongly persuasive on the present issue. Our courts consistently observe the principle that the construction placed upon a statute by a governmental agency charged with its execution and enforcement is entitled to great consideration and should not be disregarded or disturbed, unless clearly erroneousparticularly when that construction has been followed and acted upon for many years. State ex rel. Union Electric *183 Light & Power Co. v. Baker, 316 Mo. 853, 293 S.W. 399.
Appellants cite no case in which Section 393.170 has been construed to require separate authority for each transmission line. No case is cited or found holding that an electric utility must secure any certificate of approval, in addition to the initial area certificate, for additions, extensions or construction within the area. They cite and rely upon Public Service Comm. v. Kansas City Power & Light Co., 325 Mo. 1217, 31 S.W.2d 67, 71. That case gives no support to appellants' views. The issue there, as it involved Section 393.170, was whether the electric company could extend its existing lines outside of the area covered by a certificate and into new territory not included in its authoritywithout additional Commission authority. The court's determination that a new certificate was necessary to extend lines into new territory is consistent with the Commission's interpretation of Section 393.170 expressed in the Missouri Valley case, supra, from which the court quoted as follows: "We interpret the report as holding that the power company was lawfully authorized to operate its plant in the city of St. Louis and was not required to obtain additional certificates for extensions of its lines in the territory where it already had authority to operate".
Aside from the fact that the Commission's interpretation of Section 393.170 is entitled to great weight, we are convinced that those views rest upon sound legal principles and correctly state the intended effect of the statute.
Appellants claim that sub-section 1 of Section 393.170 required the company to obtain an additional certificate to construct the transmission line. They say, with no authority except a reference to the statutory definition of "electric plant", that a transmission line is an "electric plant". Hence, it is argued, as no electric plant can be constructed without approval, and as a transmission line is an electric plant, therefore a transmission line must have approval. We do not share those views. Sub-section 2 has no application. The record of this case shows that the company's electric plant had been constructed prior to 1938 and operated continuously since.
Appellants also invoke the applicability of sub-section 2 of Section 393.170, insisting that the construction of a transmission line is the exercise of a "right or privilege under any franchise", prohibited without Commission approval. We do not read the statute with that understanding. We view the company's rights and privileges under its corporate franchise as the unitary, indivisible sum of all its corporate powers conferred by the state, merged into the single privilege of operating an electric utility. Likewise, we consider that the rights and privileges held by the company under the county franchise partake of the same nature. If Commission approval were required for all separate acts in the exercise of "any right or privilege under any franchise", we envisage its ridiculous application to every conceivable detail incident to business operation.
Appellants further argue that the Commission, by entering its order in Case No. 9,470, surrendered and re-delegated its statutory powers of regulation, and that in so doing the Commission unlawfully surrendered and re-delegated state police powers conferred upon it by the legislature, and that, therefore, the order is null and void.
We re-examine the order and do not find within its terms any delegation or surrender of Commission authority. On the contrary, the order contains restrictions, conditions and limitations imposed upon the exercise of the area certificate, and recites a continuing supervision by the Commission.
We believe appellants principal contention is without merit.
*184 Appellants contend that the order in Case No. 9,470 is not supported by any substantial evidence of public convenience and necessity and is, therefore, null and void. They insist that the order of dismissal in Case No. 13,768 was based upon a nullity and is also null and void. We are thus invited to review the evidence in Case No. 9,470.
The present proceeding is independent of and collateral to Case No. 9,470. It is provided by Section 386.550, V.A. M.S.: "In all collateral actions or proceedings the orders and decisions of the commission which have become final shall be conclusive." The statute is declaratory of the law's solicitude for the repose of final judgments.
The quoted statute bars our review of the issues decided in Case No. 9,470 that were properly within the jurisdiction of the Commission. State ex rel. State Highway Commission of Missouri v. Conrad, Mo.Sup., 310 S.W.2d 871.
Is this court permitted to review the evidence in Case No. 9,470 to determine whether it supports the Commission's order? The record discloses no jurisdictional defect. The subject matter was peculiarly within the Commission's province. All notice required by law was given. The Commission heard evidence covering 120 typewritten pages. The resulting order was within the Commission's lawful powers and in terms of the statute authorizing its entry. The order is not void on the face of the record.
In the recent case, La Presto v. La Presto, Mo.Sup., 285 S.W.2d 568, 571, it was pointed out that "the erroneous exercise of jurisdiction" (errors of the trial court) can only be corrected by review on appeal but, that "the want of jurisdiction" renders a judgment void and subject to direct attack. For those reasons, the court said: "However, a judgment of a court having jurisdiction cannot be impeached collaterally by showing that the evidence on which it was based would have been insufficient on appeal to sustain the judgment. * * * we are not entitled to and shall not review the evidence to determine if there was an erroneous exercise of jurisdiction by the trial court."
Since we cannot, with propriety, review the evidence in Case No. 9,470, we refrain from doing so.
It is also contended that the Commission's order in Case No. 9,470 is void, ab initio, because notice was not given to all interested parties, and that subsequent orders based thereon are likewise void.
Appellants insist that under their right of due process they were entitled to be notified of the hearing, that they were not given notice, and that they were thereby deprived of opportunity to appear and oppose the company's application. They say that as owners of land in the allocated territory, perpetually subjected to the hazard of condemnation, they were entitled to be heard. Appellants point to no statute providing or decision holding that they were entitled to personal notice of the proceeding.
There is no evidence to show that, if appellants were residents of the area in 1938, they had any interest in the hearing except as prospective users of electricity, as were all members of the resident public. Such status creates no interest adverse to that of the utility or any direct interest in the proceeding, entitling them to notice.
It is considered that, in proceedings of the nature under discussion, there are no parties adverse to the application, absent statutory provision. The public is regarded as one party and the utility the other. The Commission and its counsel represent the interest of the public. 73 C.J.S. Public Utilities § 50, p. 1116. State ex rel. City of St. Louis v. Public Service Commission of Missouri, 331 Mo. 1098, 56 S.W.2d 398. We find no merit in the contention.
Appellants' concluding contention is made under the voluntary assumption *185 that the 1938 certificate was valid authorization to construct the transmission line. They say, even so, the line was not constructed within two yearstherefore the authorization became null and void. The argument is advanced under sub-section 3, Section 393.170, which provides that the "authority" conferred by a certificate of convenience and necessity shall be null and void unless exercised within two years.
Certificate "authority" is of two kinds and emanates from two classified sources. Sub-section 1 requires "authority" to construct an electric plant. Sub-section 2 requires "authority" for an established company to serve a territory by means of an existing plant. Peoples Telephone Exchange v. Public Service Comm., 239 Mo. App. 166, 186 S.W.2d 531.
We have no concern here with Sub-section 1 "authority". The 1938 certificate permitted the grantee to serve a terriority not to build a plant. Sub-section 2 "authority" governs our determination.
The question before us, stripped of ambiguity and resolved to simplicity, is: Did the company, within 2 years, proceed to use the 1938 area certificate by operating as an electric utility in the newly allocated territory? The answer can not come from appellants' evidence. There is noneexcept records. The company has shown that it exercised the certificate "authority" immediately upon grant, and continuously to the time of trial. It has suffered no forfeiture. The contention is void of merit.
In support of their contentions, appellants have cited and quoted from numerous cases. We have carefully examined and considered the submitted authorities, but find nothing expressed in them contrary to our views stated in this opinion.
We find that the orders of the Commission entered in Cases No. 9,470, No. 11,892, and No. 13,768 are lawful and reasonable. It is our further finding that the action of the trial court in entering its judgment affirming the Commission's order of dismissal was also lawful and reasonable.
It is our determination that the 1938 certificate of convenience and necessity conferred authority upon the company to construct the proposed transmission line, and that the law required no additional authorization from the Commission.
The judgment is affirmed.
All concur.
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181 Conn. 248 (1980)
RENA K. TSOPANIDES
v.
TRIANTAFI TSOPANIDES
Supreme Court of Connecticut.
Argued May 9, 1980.
Decision released June 17, 1980.
COTTER, C. J., BOGDANSKI, PETERS, PARSKEY and RUBINOW, JS.
Harold L. Rosnick, with whom, on the brief, was Sigmund L. Miller, for the appellant (plaintiff).
Elizabeth A. Dorsey, with whom were William F. Gallagher and, on the brief, George J. Jaser, for the appellee (defendant).
PER CURIAM.
The principal issue raised by this appeal is whether in a dissolution action the court may properly render a judgment ordering the conveyance of property to a party who has not filed a claim for such relief. *249 In her complaint for dissolution of her marriage to the defendant, the plaintiff alleged that the parties jointly owned four parcels of real estate which she specifically identified. In her claims for relief she requested, inter alia, conveyance of title to the jointly owned real estate and "[w]hatever further relief the court in equity may deem proper." In his answer the defendant admitted the allegations respecting the jointly owned property. He made no independent claims for relief.
The plaintiff contends that, in the absence of claims for relief by the defendant, the court erred in ordering the plaintiff to convey property to the defendant. In support of her claim, the plaintiff invokes the principle affirmed in Winick v. Winick, 153 Conn. 294, 299, 216 A.2d 185 (1965), that procedural due process requires that parties to litigation have "fair notice" that the court will decide a given issue in that litigation. That principle, however, is of no aid to the plaintiff in this case because the plaintiff's complaint and her prayers for relief put in issue the disposition of the jointly held real property and she cannot claim lack of notice as to an issue that she herself raised. Although she requested the court to award all the property to her, she could not, by that request, limit the court to either granting her request in toto or denying it in toto. The court might properly find, as it did in substance, that the plaintiff was entitled to a conveyance of some of the property if, but only if, she conveyed some of the property to the defendant, and that the plaintiff's request could be granted only to that extent.
Further, her additional request for "[w]hatever further relief the court in equity may deem proper" *250 invited the court to weigh the claims of the parties with respect to the properties referred to in the complaint even if, in the absence of this omnibus request, the court might otherwise have been limited to either granting or denying the plaintiff's specific request that the properties be conveyed to her. Finally, the plaintiff is chargeable with notice that under General Statutes § 46b-81 (a)[1] the court was specifically authorized to assign the property of one spouse to another. Hodge v. Hodge, 178 Conn. 308, 315-16, 422 A.2d 280 (1979).
The plaintiff's reliance on Practice Book, 1978, § 456 is misplaced. This section provides that in a dissolution of marriage the defendant may file an answer "which may set forth the defendant's claims for relief." The purpose of this section is to permit a defendant to claim relief not claimed by the plaintiff. For example, in this case if the plaintiff had limited her claims to custody and support of minor children, unless the defendant had raised, in his claims for relief, the disposition of the jointly held property, there would have been no basis for the court to have acted in the matter. Lundberg v. Kovacs, 172 Conn. 229, 233, 374 A.2d 201 (1977). The defendant is not required, however, to duplicate a claim already made by the plaintiff nor is he required to give the plaintiff notice of the obvious.
The trial court ordered the four jointly owned parcels divided equally between the parties. The *251 plaintiff complains that the division may have been equal in numbers but not in value. Only the defendant presented a current financial affidavit at the time of the hearing although both parties testified. It was for the court, as the trier of the facts, to weigh the evidence presented and from such evidence to draw its own conclusions. The court in making its distribution assigned to the plaintiff property having a net value of approximately $140,000 and to the defendant property having a net value of approximately $192,000. While the court could reasonably have arrived at a distribution weighted somewhat less heavily in the defendant's favor, we cannot hold that the present distribution was clearly erroneous.
There is no error.
NOTES
[1] "[General Statutes] Sec. 46b-81. (Formerly Sec. 46-51). ASSIGNMENT OF PROPERTY AND TRANSFER OF TITLE. (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other...."
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525 S.W.2d 32 (1975)
Oscar Lee GRAGG, Appellant,
v.
CAYUGA INDEPENDENT SCHOOL DISTRICT, Appellee.
No. 820.
Court of Civil Appeals of Texas, Tyler.
June 5, 1975.
Rehearing Denied June 26, 1975.
*34 Billy H. Gragg, Bob R. Reeves, Palestine, for appellant.
James E. Pritchard, Fort Worth, and Elvin E. Tackett, Bedford, for appellee.
MOORE, Justice.
This is a delinquent tax suit. Appellee, Cayuga Independent School District, instituted suit against appellant, O. L. Gragg, for the recovery of certain delinquent ad valorem taxes alleged to be due by appellant for the years of 1971, 1972 and 1973, and to foreclose a tax lien on land owned by appellant lying within the school district. Appellant answered with a general denial and affirmatively alleged by way of a defense that no taxes were due because the method used by the school district in assessing the land for taxes was in violation of Article 8, Sec. 1-d[1] of the Texas Constitution, Vernon's Ann.St., which requires that land designated for agricultural use must be assessed for tax purposes on the basis of only those factors relative to agricultural use.[2] After a trial before the court sitting without a jury, the trial court entered judgment for the school district for taxes, penalty and interest in the amount of $30,686.16 and for foreclosure of the tax lien. From such judgment, appellant, O. L. Gragg, perfected this appeal.
We affirm the judgment rendered by the trial court.
The trial court filed extensive findings of fact and conclusions of law. Among other things, the trial court found (1) that although appellant used the land for agricultural purposes, he failed to establish his eligibility for an agricultural use designation under the amendment in that his proof failed to show that his agricultural business constituted his primary occupation and source of income and (2) that appellant failed to prove that the plan or scheme employed by the district in fixing the value of his land worked to his substantial injury.
Appellant brings fifty-two points of error. Basically, he contends that the evidence conclusively established his eligibility to claim the benefit of the amendment, and based on this premise, he contends that the assessment and levy were void because the district adopted a fundamentally wrong method of taxation in that the school district valued his land on a basis other than *35 its value for agricultural use in violation of the constitutional mandate. We are not in accord with this proposition for two reasons.
First, in order for appellant to claim the benefits of the amendment, it was incumbent upon him to plead and prove that he properly brought himself within the requirements of the amendment. One of the essential requirements is that an applicant for an agricultural use designation must prove that his business venture in agriculture constitutes his primary occupation and source of income. Thus, the source of an applicant's income is of paramount importance. With regard to appellant's income, the trial court made findings of fact as to both the net and gross annual income received by appellant from his agricultural business as well as from other business and investments. For convenience, the findings are set forth in the following schedule[3]:
1970 1971 1972
Gross Income from
Agricultural Operations $370,659.07 $299,205.84 $301,616.24
Gross Income from
Business Ventures,
Occupations, and
Investment of Capital
Other than Agricultural
Operations 415,295.28 400,670.11 674,659.17
Gross Income from
All Sources 788,719.05 703,003.17 980,856.31
Net Income from
Agricultural Operations 131,357.14 79,397.67 109,188.64
Net Income from
Business Ventures, Occupations,
and Investment of
Capital, other than
Agricultural Operations 402,038.55 391,091.78 661,628.83
Net Income from
All Sources 536,160.39 473,616.67 775,398.37
Appellant has no points of error challenging the accuracy of any of the findings showing appellant's income from the various sources indicated and therefore such findings are conclusive and binding on this Court. Curry v. E. E. Stone Lumber Co., 218 S.W.2d 293 (Tex.Civ.App., writ ref., n. r. e.); Cortez v. Cortez, 457 S.W.2d 131 (Tex. Civ.App., 1970, n.w.h.). In view of the foregoing findings, it becomes obvious that appellant's agricultural income did not constitute his primary source of income and this is true irrespective of whether his income in computed on the basis of net or gross income. We hold that the trial court did not err in finding that appellant did not discharge his burden of proving that he brought himself within the requirements of the amendment.
While appellant does not challenge the accuracy of the foregoing income schedule, *36 he maintains that the trial court erred in including certain items of income in calculating his total business income. He argues that only such income which he received from a business venture for profit is to be compared with agricultural income in determining his eligibility. He takes the position that the items of income listed below should not have been classified as business income and upon excluding these items, his agricultural income would then constitute his primary source of income thereby making him eligible for an agricultural use designation. The items of income which he claims should have been excluded are set forth in the following schedule:
1970 1971 1972
Oil and Gas Working
Interest Roy. $ 5,888.59 $ 5,103.98 $ 4,367.76
Sale of Corporate Stock 111,430.85 62,288.21 301,258.03
Dividends 62,177.71 66,544.57 70,692.98
Rent-Houston office
building 63,340.00 76,010.22
Interest-Savings Account 38,004.00 23,265.13 110,865.82
Interest-Project Notes 36,225.72
___________ ___________ ___________
TOTAL $248,426.87 $220,541.86 $563,194.81
We are not in accord with appellant's contention that the foregoing items should have been excluded from his non-agricultural income. In determining whether agricultural income constitutes the primary source of income, other income from business ventures, occupations and investments must be considered. San Marcos Consolidated Ind. School Dist. v. Nance, 495 S.W.2d 335 (Tex.Civ.App., 1973, writ ref'd., n. r. e.). In the instant case, there is nothing in the evidence showing that the above listed items of income were received by appellant as anything other than income from business ventures, occupations or investments of capital. The record reflects that appellant has been in the oil business for over forty years; he is a partner in two oil companies, Carter-Gragg Oil Company and Gragg Drilling Company; he has a considerable income from oil and gas producing properties located in a number of States; he has rental income from an office building in Houston; he received considerable income from invested capital such as profit on the purchase and sale of stock, and he receives dividends from stocks as well as interest on invested capital. He purchased the farm land in question in 1946. In view of the fact that appellant actively engaged in the oil business and actively engaged in the business of making investments, we think the trial court properly included the foregoing items in arriving at appellant's income from non-agricultural sources.
Second, even if appellant had established his eligibility to an agricultural use designation, it does not necessarily follow that he would be entitled to a judgment voiding the assessment merely because the school district failed to assess his land in accordance with the constitutional mandate. There must be more than the adoption of a fundamentally wrong principle or method of taxation. When the attack is made because the taxing authority followed an arbitrary plan or scheme of fixing values, the taxpayer, to prevail, must show not only that the plan was an arbitrary and illegal one, but also that the use of the plan *37 worked to his substantial injury. Druesdow v. Baker, 229 S.W.2d 493, 495 (Tex.Com.App., 1921); Rowland v. City of Tyler, 5 S.W.2d 756, 760 (Tex.Com.App., 1928); Lubbock Hotel Co. v. Lubbock Independent School Dist., 85 S.W.2d 776 (Tex.Civ.App., Amarillo, 1935, no writ); State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573 (1954); City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954); Whelan v. State, 155 Tex. 14, 282 S.W.2d 378 (1955); Stein v. Lewisville Independent School Dist., 481 S.W.2d 436 (Tex.Civ.App., Ft. Worth, 1972, writ ref., n. r. e.). In Bass v. Aransas County Independent School District, 389 S.W.2d 165, 170 (Tex.Civ.App., Corpus Christi, 1965, writ ref., n. r. e.), the rule is stated thusly:
"The rule has been definitely established in Texas that where an aggrieved taxpayer fails to avail himself of the affirmative remedies of injunction and mandamus to prevent a taxing authority from putting an invalid and arbitrary plan of taxation into effect, but waits until suit is brought against him for delinquent taxes, his right to relief is limited. Once such a plan is put into effect, in the absence of a showing, by comparison of the assessments against his property with assessments against other like property, of a gross discrimination against him, the land owner may defeat recovery of taxes only to the extent that they are excessive, and he must assume the burden of proving excessiveness. He must show that the use of such a plan worked to his substantial injury, and the extent of such injury. * * *"
In the City of Orange v. Levingston Shipbuilding Co., 258 F.2d 240 (5th Cir. 1958), the Court said:
"No matter how much it (the tax plan) violates the State Constitutional pattern, the only relief of a taxpayer defending a delinquent tax suit is to show in dollars that he is worse off."
Upon the trial of the case at bar, the school district introduced into evidence the delinquent tax records for the years 1971, 1972 and 1973. The tax assessor identified the records and testified that the taxes had not been paid. This evidence made a prima facie case as to every material fact necessary to the establishment of appellee's cause of action to recover delinquent taxes. Article 7326 and Article 7328, Vernon's Annotated Tex.Civ.Stat.; Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132 (Tex.Sup.1970); B. M. Jamison v. City of Pearland, 489 S.W.2d 636 (Tex. Civ.App., Houston, 1st Dist., 1972, writ ref'd., n. r. e.). Once a taxing authority establishes a prima facie case, showing that taxes are delinquent, the burden then rests upon the taxpayer to go forward with proof which would meet the requirements of law for avoiding the assessment and levy. State v. Whittenburg, supra.
The record is devoid of any evidence showing that the taxes levied against appellant were either discriminatory or excessive. Appellant made no attempt to prove that the assessment and levy were discriminatory. His sole contention seems to be that the taxes are excessive because his land was assessed at a value in excess of the value at which it should have been assessed had it been assessed solely on factors relative to its agricultural use.
Appellant, however, failed to offer any proof of the value of his land based solely on its use for agricultural purposes. The only proof of the value of the land was the assessed value set by the tax assessor. For all the record shows, it may well be that the assessed value was actually lower than the market value of the land when valued on an agricultural use basis. In the absence of proof showing the assessment and levy to be excessive, it follows that appellant failed to discharge his burden of proving substantial injury.
Appellant argues that his proof was sufficient to show substantial injury. He takes the position that substantial injury was conclusively established by the testimony of Walter B. Brown, appellant's landman. *38 We do not agree. Brown testified that after talking with landowners, he had "learned" that in other school districts where land was assessed as agricultural land, the taxpayer received "about" a "40% Reduction" in his taxes. Such testimony is clearly hearsay and, as such, was without probative force. 24 Tex.Jur.2d, Evidence, Sec. 557, p. 51. At any rate, such testimony would not meet appellant's burden of proving that the assessed value was in excess of the market value of his land when valued on an agricultural use basis.
By other points of error, appellant contends that various findings of fact made by the Court are against the great weight and preponderance of the evidence. After a review of the entire record and after weighing all the evidence, both that in favor of, as well as that against the findings complained of, we are of the opinion that such findings are not against the great weight and preponderance of the evidence.
Other points, not discussed herein, have been considered and found by to be without merit and are overruled.
The judgment of the trial court is affirmed.
NOTES
[1] Hereinafter referred to as the "amendment."
[2] The relevant parts of the Constitutional Amendment are as follows:
"Sec. 1-d. Assessment of lands designated for agricultural use
"Sec. 1-d. (a) All land owned by natural persons which is designated for agricultural use in accordance with the provisions of this Section shall be assessed for all tax purposes on the consideration of only those factors relative to such agricultural use. `Agricultural use' means the raising of livestock or growing of crops, fruit, flowers, and other products of the soil under natural conditions as a business venture for profit, which business is the primary occupation and source of income of the owner.
"(b) For each assessment year the owner wishes to qualify his land under provision of this Section as designated for agricultural use he shall file with the local tax assessor a sworn statement in writing describing the use to which the land is devoted.
"(c) Upon receipt of the sworn statement in writing the local tax assessor shall determine whether or not such land qualifies for the designation as to agricultural use as defined herein and in the event it so qualifies he shall designate such land as being for agricultural use and assess the land accordingly.
"(d) Such local tax assessor may inspect the land and require such evidence of use and source of income as may be necessary or useful in determining whether or not the agricultural use provision of this article applies."
[3] The parties agree that in determining eligibility for an agricultural use designation for 1971, 1972 and 1973, appellant's income for each preceding year is controlling.
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623 F. Supp. 207 (1985)
CONNECTICUT FUND FOR THE ENVIRONMENT; Natural Resources Defense Council
v.
The JOB PLATING COMPANY, INC.
Civ. No. H-83-963(JAC).
United States District Court, D. Connecticut.
September 17, 1985.
*208 Katherine H. Robinson, Hartford, Conn., for plaintiff Connecticut Fund for the Environment.
James Thornton, New York City, for plaintiff Natural Resources Defense Council.
Sharon Holland Purtill, Law Offices of Peter Jay Alter, Glastonbury, Conn., for defendant Job Plating Co., Inc.
RULING ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JOSÉ A. CABRANES, District Judge:
This is a citizen suit under the federal Clean Water Act against the operator of an electroplating plant that concededly discharges pollutants into the Quinnipiac River. The suit was brought against the Job Plating Company of Plainville, Connecticut, by the Connecticut Fund for the Environment and the Natural Resources Defense Council.
The environmental organizations contend that Job Plating violated the Clean Water Act on 174 occasions by discharging effluents *209 in excess of the amount permitted by its National Pollutant Discharge Elimination System permit. The plaintiffs seek a declaratory judgment that Job Plating has violated the Clean Water Act, an injunction to prevent further violations, and civil penalties of up to $10,000 per violation payable to the United States Treasury. They also seek costs and attorneys' fees.
Job Plating does not deny that it has exceeded the discharge levels authorized by its NPDES permit. However, the company asserts that this action should nonetheless be dismissed for any of five reasons. The court finds none of these arguments to be persuasive.
First, Job Plating contends that the suit was not brought within the applicable statute of limitations. The court finds, however, that the action is governed by the five-year statute of limitations applicable to government suits under the Clean Water Act rather than by the shorter statute of limitations that would be provided by state law. Accordingly, the action is timely.
Second, Job Plating asserts that penalties for past violations cannot be recovered in citizen suits under the Clean Water Act. The court finds that, while private damages may not be recoverable under the Act, civil penalties (including fines) may be obtained on behalf of the United States.
Third, Job Plating argues that the court, in an exercise of its discretion, should defer in this matter to the Connecticut Department of Environmental Protection. However, the court finds that no such deference is called for where, as here, the suit does not raise complex issues of fact that are peculiarly within the agency's expertise.
Fourth, Job Plating contends that the action should be dismissed because, under the Clean Water Act, a citizen suit is precluded by a state's "diligent prosecution" of the same matter. The court finds that there was no "diligent prosecution" in this case, however, because the state's suit against Job Plating was initiated only after the citizen suit.
Finally, Job Plating argues that its NPDES permit is unenforceable because it was not properly promulgated. The court, noting that Job Plating failed to take advantage of earlier opportunities to challenge its permit, holds that the validity of the permit cannot be raised in this action.
Accordingly, the court finds that Job Plating is liable to the plaintiffs for violation of the Clean Water Act. The court defers a decision with respect to the relief that ought to be granted as a result of this ruling.
I.
This action, a citizen suit brought pursuant to Section 505 of the Clean Water Act ("Act"), 33 U.S.C. § 1365, was commenced on November 17, 1983.[1] The plaintiffs are environmental organizations some of whose members meet the standing requirements established for citizen suits pursuant to Article III of the United States Constitution and 33 U.S.C. § 1365. See Endorsement Ruling (entered Mar. 28, 1985) on Defendant's Motion for Judgment on the Pleadings (filed Dec. 28, 1984); Certified Official Transcript of Oral Ruling delivered at a Hearing Held on November 19, 1984 (filed Nov. 26, 1984) (discussion of standing requirements in the context of this case); Sierra Club v. SCM Corporation, 747 F.2d 99, 103-07 (2d Cir.1984) (standard for standing for citizen suits brought under 33 U.S.C. § 1365); Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 60 (2d Cir.1985) (recent case applying Sierra Club v. SCM Corporation standard for standing and upholding standing in conditions similar to this case). The defendant *210 is a Connecticut corporation that operates an electroplating plant in Plainville, Connecticut, and concededly dicharges effluents into the Quinnipiac River.
The plaintiffs allege that the defendant violated its National Pollutant Discharge Elimination System ("NPDES") permit, see 33 U.S.C. § 1342(a), (b) (authorizing state issuance of NPDES permits pursuant to approval of the state's program by the Administrator of the federal Environmental Protection Agency ["EPA"]).[2] Specifically, the plaintiffs contend, based on the Discharge Monitoring Reports ("DMRs") that the defendant is required to file by law, that the defendant exceeded the permissible discharge allowed under its NDPES permit on 174 occasions. See 33 U.S.C. § 1318; 40 C.F.R. § 122.41(j); Plaintiffs' Statement Pursuant to [Local] Rule 9[c] in Support of Their Motion for Summary Judgment ("Plaintiffs' Statement"), ¶ 4, Exhibit D attached to Notice of Motion (filed Mar. 2, 1984). The plaintiffs seek declaratory relief with respect to the defendant's alleged past violations of its NPDES permit, injunctive relief preventing future violations, civil penalties of up to $10,000 per violation payable to the United States pursuant to 33 U.S.C. §§ 1319(d), 1365(a), and costs and attorney's fees pursuant to 33 U.S.C. § 1365(d).
On March 2, 1984, the plaintiffs filed a motion for partial summary judgment accompanied by a statement of undisputed facts, exhibits, an affidavit and a memorandum of law. On May 11, 1984, the defendant filed a memorandum in opposition to plaintiffs' motion. The defendant filed a motion to dismiss accompanied by exhibits, an affidavit and a memorandum of law. Each of the parties thereafter filed several additional papers concerning the outstanding motions. On November 19, 1984 (after the transfer of this case to me), oral argument was held on the pending motions. The motion for partial summary judgment and motion to dismiss became ripe for decision as of March 28, 1985, the date on which the plaintiffs' standing was upheld.
II.
The following material facts are undisputed:
1. On February 23, 1976, the Connecticut Department of Environmental Protection (DEP) issued NPDES permit number CT0022284 to the defendant. The permit was reissued on March 23, 1978. See Plaintiffs' Statement, ¶ 3 and Exhibit A (NPDES permits).
2. The defendant is required by its NDPES permit to file monthly DMRs. These reports indicate whether the defendant, on the basis of the results of specific tests, is in compliance with its permit. See Plaintiffs' Statement, ¶ 4; Exhibit D attached to Plaintiffs' Statement (copies of DMRs).
3. The defendant reported in its DMRs that, between May 1978 and November 17, 1983, it had on 174 occasions discharged substances in excess of the amounts allowed by its permit. See Plaintiffs' Statement, ¶ 5.
4. On September 9, 1983, the plaintiffs sent a Notice of Intent to Sue to the Administrator of EPA, DEP and the defendant pursuant to 33 U.S.C. § 1365(b)(1)(A). See Affidavit of Alfred J. Mastriani (executed May 8, 1984) ("Mastriani Aff."), ¶ 7, Ex. B.
5. Neither the EPA nor the DEP had filed any action against the defendant as of November 17, 1983, the date this action was filed. See Mastriani Aff., ¶¶ 8-10.
6. On December 9, 1983, the Commissioner of DEP issued an Order to Abate Pollution, No. 3639 to the defendant. Mastriani Aff. ¶ 9, Ex. C.
7. On February 9, 1984, Mike Harder, Senior Sanitary Engineer for the Water Compliance Unit, DEP, sent a letter to the defendant that stated that the defendant was in violation of DEP's Abatement Order *211 and that the matter had been referred to the Attorney General's Office for further action. See Mastriani Aff. ¶ 10, Ex. D.
8. The plaintiffs have never contacted the defendant and requested that they be permitted to join in negotiations with the DEP and the defendant, nor have they been denied the opportunity to so join in. See Mastriani Aff., ¶ 11.
9. On March 19, 1984 the State of Connecticut, through DEP, instituted a civil action in the Connecticut Superior Court against the defendant to enforce Abatement Order No. 3639. See Mastriani Aff., Ex. E (copy of complaint). The defendant was served with the Summons and Complaint on March 23, 1984, and counsel filed an appearance on April 3, 1984 on behalf of the defendant. On April 6, 1984, the plaintiffs' counsel was informed by the defendant's attorney of the suit by DEP. See Mastriani Aff., ¶ 13.
10. The state's suit in the Connecticut Superior Court seeks enforcement of Order No. 3639, issued on December 9, 1983, requiring submission of an engineering report and subsequent placement of approved waste water treatment facilities in operation by May 31, 1984; the instant citizen suit seeks penalties for violation of effluent limitations set forth in NPDES Permit No. CT0022284, and an injunction against future violations of the permit limits. See Affidavit of Richard F. Webb (executed June 19, 1985) ("Webb Aff."), ¶ 2(c).
11. The state's suit has been resolved, with no penalties assessed against the defendant and the filing of a Stipulated Judgment in the Superior Court on June 6, 1984. See Webb Aff., ¶ 2(c), Attachment (Stipulated Judgment).
III.
The defendant raises five arguments in favor of its motion to dismiss and in opposition to the plaintiffs' motion for summary judgment: (1) that this action is barred by the applicable statute of limitations; (2) that 33 U.S.C. § 1365 precludes retrospective relief in citizen suits; (3) that the DEP has primary jurisdiction over this lawsuit; (4) that the court does not have jurisdiction over this lawsuit because the state has diligently prosecuted an action against the defendant within the meaning of Section 1365(b)(1)(B), which makes the lack of such prosecution a prerequisite for a citizen suit; and (5) that the defendant's NPDES permit is invalid because it was not properly promulgated and therefore cannot be enforced against the defendant. If the defendant fails to prevail on at least one of these arguments, partial summary judgment on the issue of liability must enter in favor of the plaintiffs. See Section IV, infra. Each of these arguments shall be addressed seriatim.
A. Statute of Limitations
The Act provides no statute of limitations for actions brought under it. The defendant argues that state law should supply the applicable statute of limitations for state-promulgated NPDES permits. See Memorandum of Law in Support of Motion to Dismiss (filed May 11, 1984) ("Defendant's Memorandum I") at 21-23; Defendant[] Job Plating Company, Inc. Supplemental Memorandum of Law in Support of Motion to Dismiss (filed Sept. 19, 1984) ("Defendant's Memorandum III") at 1-3. In this case, the defendant contends that the applicable statute of limitations is one year pursuant to Conn.Gen.Stat. § 52-585 (civil penalty actions), or three years under the statute governing nuisance actions. See Defendant's Memorandum I at 22-23; Defendant's Memorandum III at 3. The defendant maintains that the federal five-year statute of limitations applicable to civil penalty actions, 28 U.S.C. § 2462, does not apply to citizen suits under the Act because that statute covers only actions brought on behalf of the United States; Section 1365(a) refers to "citizen actions" as brought on the "[citizen's] behalf[.]" Defendant's Memorandum I at 21-22; Defendant's Memorandum III at 1-2.
The plaintiffs, citing cases on point, claim either that the five-year limitations period of 28 U.S.C. § 2462 uniformly should apply to citizen (and government) suits under the *212 Act or that no statute of limitations is applicable to citizen suits. See Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss and Response to Defendant's Opposition to Plaintiffs' Motion for Summary Judgment (filed June 21, 1984) ("Plaintiffs' Memorandum II") at 11-13; Plaintiffs' Supplemental Memorandum on Statutes of Limitations (filed Oct. 12, 1984) ("Plaintiffs' Memorandum III") at 1-6; Memorandum of Law and Index of Cases (filed June 19, 1985) ("Plaintiffs' Memorandum IV") at 2.
Our Court of Appeals recently has held that
[w]hen Congress creates a federal cause of action but does not expressly provide an applicable statute of limitations, [it is to be] assume[d] that Congress intended the courts to adopt the limitation period of an analogous cause of action ... and "resort to state law remains the norm for borrowing of limitations periods." ... But where the application of a state statute of limitations would "frustrate or interfere with the implementation of national policies" or "be inconsistent with the underlying policies of the federal statute," courts should borrow a timeliness rule from federal law.
Monarch Long Beach Corp. v. Soft Drink Workers, Local 812, International Brotherhood of Teamsters, 762 F.2d 228, 230 (2d Cir.1985) ("Soft Drink Workers") (emphasis supplied) (citations omitted).
The defendant has not drawn to the court's attention any case in which a court has applied a state statute of limitations to a citizen suit under the Act. In contrast, several courts specifically have refused to apply state limitations periods because to do so would frustrate the federal policy of uniform enforcement of the Act. See Chesapeake Bay Foundation v. Bethlehem Steel Corporation, 608 F. Supp. 440, 446-50 (D.Md.1985) ("Chesapeake Bay I"); Student Public Interest Research Group of New Jersey, Inc. ("NJSPIRG") v. Tenneco Polymers, 602 F. Supp. 1394, 1398-99 (D.N.J.1985) ("NJSPIRG I"); NJSPIRG v. Monsanto Co., 600 F. Supp. 1474, 1477 (D.N.J.1985) ("NJSPIRG II"); Sierra Club v. Simkins Industries, Inc., 617 F. Supp. 1120, 1124-25 (D.Md.1985).
The court concludes that application of the state statute of limitations to citizen suits under the Act is inappropriate, precisely for the reason noted by the Court of Appeals in Soft Drink Workers. See Chesapeake Bay I, supra, 608 F.Supp. at 446-50 (noting that application of a state statute of limitations to citizen suits would be inconsistent with the five-year statute of limitations available for similar suits seeking identical relief initiated by the federal government pursuant to the Act); NJSPIRG I, supra 602 F.Supp. at 1398-99 (same).
Three of the cases that have dealt with the appropriate statute of limitations for citizen suits under the Act, including one in this Circuit, have applied the five-year limitations period of 28 U.S.C. § 2462. See Friends of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 532, 22 Env't Rep.Cas. (BNA) 1143, 1145-46 (W.D.N.Y.1984) ("Friends of the Earth") (defendant argued for five-year limitations period under federal law or, in the alternative, a three-year period under state law; plaintiff argued for no statute of limitations); Chesapeake Bay I, supra, 608 F.Supp. at 449-50; Sierra Club v. Simkins Industries, Inc., supra, at 1124-25. Two others, NJSPIRG I and NJSPIRG II, found both state statutes of limitations and Section 2462 to be inapplicable and concluded that there is no statute of limitations for actions brought pursuant to the Act.
This court assumes without deciding that 28 U.S.C. § 2462 is not directly applicable to citizen suits brought under the Act. See Bertha Building Corp. v. National Theatres Corp., 269 F.2d 785, 788-89 (2d Cir.1959) (Section 2462 applies only to actions brought on behalf of the United States and qui tam actions), cert. denied, 361 U.S. 960, 80 S. Ct. 585, 4 L. Ed. 2d 542 (1960); but cf. Friends of the Earth, supra, 618 F. Supp. 532, 22 Env't Rep.Cas. (BNA) at 1145-46 (holding Section 2462 *213 to be directly applicable to citizen suits under the Act).[3] However, a citizen suit brought under the Act is closely analogous to an action brought under the same Act on behalf of the United States. See Chesapeake Bay I, supra, 608 F.Supp. at 449-50; Soft Drink Workers, supra, 762 F.2d at 230-32. Accordingly, the five-year statute of limitations period of Section 2462 ought to be applied in citizen suits brought pursuant to Section 1365.
B. Penalties for Past Violations
The defendant contends that 33 U.S.C. § 1365(a) only permits prospective relief in citizen suits and, therefore, no remedy is available for past violations of an NPDES permit. Defendant's Memorandum I at 20-21. To support its position that only prospective (injunctive) relief for ongoing violations is appropriate,[4] the defendant points to the language of Section 1365(a) that authorizes citizen suits against "any person ... who is alleged to be in violation [of an NPDES permit,]" id. (emphasis added), and invokes cases holding that damages are not available in citizen actions under Section 1365. See Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 14, 17-18, 101 S. Ct. 2615, 2623, 2624-25, 69 L. Ed. 2d 435 (1981); City of Evansville, Indiana v. Kentucky Liquid Recycling, 604 F.2d 1008, 1014 (7th Cir.1979), cert. denied, 444 U.S. 1025, 100 S. Ct. 689, 62 L. Ed. 2d 659 (1980). The plaintiffs, on the other hand, contend that, although damages may not be recoverable in citizen suits brought under Section 1365, liability and remedies (including fines) may be imposed on the defendant for past violations of NPDES permits. Plaintiffs' Memorandum II at 13-14; Plaintiffs' Memorandum IV at 5-7.
Every court but two that has considered this issue has ruled in favor of the plaintiffs' position for the reason that Section 1365 explicitly authorizes district courts "to apply any appropriate civil penalties under [33 U.S.C.] section 1319(d)" and because the remedies obtainable in citizen suits should be coextensive with those available in suits initiated by the federal government. See Sierra Club v. Aluminum Company of America, 585 F. Supp. 842, 853-54 (N.D.N.Y.1984) (Miner, J.); NJSPIRG II, supra, 600 F.Supp. 1476-77; Sierra Club v. C.G. Manufacturing, Inc., Civ. No. 84-1784-Z (D.Mass. Apr. 12, 1985) (Zobel, J.) at 3-6; Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542 (E.D.Va.1985) (Merhige, J.) ("Chesapeake Bay II") at *214 1544-46; NJSPIRG v. Anchor Thread Company, 22 Env't Rep.Cas. (BNA) 1150, 1154 (D.N.J.1984) ("NJSPIRG III"); Sierra Club v. Raytheon Company, 22 Env't Rep.Cas. (BNA) 1050, 1053-55 (D.Mass. 1984). See also Friends of the Earth, supra, 618 F. Supp. 532, 22 Env't Rep.Cas. (BNA) at 1146; NJSPIRG v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 1138 (3d Cir.1985) ("NJSPIRG IV"); NJSPIRG I, supra, 602 F.Supp. at 1399. Accord, Illinois v. Outboard Marine, Inc., 680 F.2d 473, 480-81 (7th Cir.1982) (Wisdom, J., sitting by designation).
The cases relied upon by the defendant only state the undisputed proposition that private damages are not recoverable by plaintiffs in citizen suits brought under Section 1365; in fact, those very cases refer to the availability of civil penalties for past violations in such suits. See Middlesex County Sewerage Authority v. National Sea Clammers Association, supra, 453 U.S. at 14, n. 25, 17-18, n. 27, 101 S.Ct. at 2623, n. 25, 2625, n. 27; City of Evansville, Indiana v. Kentucky Liquid Recycling, supra, 604 F.2d at 1014, n. 16. See also NJSPIRG II, supra, 600 F.Supp. at 1474 (noting distinction of cases cited by defendant); Chesapeake Bay II, supra, at 1551-53 (same); Sierra Club v. C.G. Manufacturing, Inc., supra, at 3-6 (same).
Two cases contrary to the plaintiffs' position, Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 395-99 (5th Cir.1985) (dicta in case involving one-time discharge not subject to any permit); Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 21 Env't Rep.Cas. (BNA) 1393 (D.R.I.1984), are inapposite and unpersuasive. See Chesapeake Bay II, supra, at 1550-52 (criticizing and distinguishing Hamker v. Diamond Shamrock Chemical Co. and Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp.); Sierra Club v. Simkins Industries, Inc., supra at 1131-32 (distinguishing Hamker v. Diamond Shamrock Chemical Co. on its facts).
Accordingly, the court finds that the plaintiffs in this action may obtain relief for the defendant's past violations of its NPDES permit.
C. Primary Jurisdiction
The defendant contends that the doctrine of primary jurisdiction should cause the court, in an exercise of its discretion, to defer to DEP's abatement proceeding. See Defendant's Memorandum I at 17-19. The plaintiffs, on the other hand, argue that the doctrine of primary jurisdiction has no application to this case because of the absence of complex issues of fact with which the court is unfamiliar and with respect to which the agency arguably is expert. See Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S. Ct. 492, 494-95, 96 L. Ed. 576 (1952); Skoller v. Blue Cross-Blue Shield of Greater New York, 584 F. Supp. 288, 290 (S.D.N.Y.1984) (Lasker, J.).
Assuming arguendo that the doctrine of primary jurisdiction may be applied to require a deference of some kind to state administrative agencies in matters treated by federal law, the factors that would lead the court to invoke that doctrine are not present in this case. The court is not faced with complex issues of fact, but rather with a straightforward enforcement action in which legal issues are presented. In fact, the drafters of Section 1365 unequivocally asserted that "[e]nforcement of pollution regulations is not a technical matter beyond the competence of the courts." Senate Comm. on Public Works, Federal Water Pollution Control Act Amendments of 1972, S.Rep. No. 92-414, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 3668, 3747 (1972). See Board of Education of the City School District of the City of New York v. Harris, 622 F.2d 599, 606-07 (2d Cir.1979) ("It is well established that the courts need not defer to an agency where the issue involved is a strictly legal one, involving neither the agency's particular expertise nor its fact finding prowess."), cert. denied sub nom., Hufstedler v. Board of Education of the City School District of the City of New York, *215 449 U.S. 1124, 101 S. Ct. 940, 67 L. Ed. 2d 110 (1981).
A case relied upon by the defendant, Montgomery Environmental Coalition Citizens Coordinating Committee on Friendship Heights v. Washington Suburban Sanitary Commission, 607 F.2d 378, 381-82 (D.C.Cir.1979), is clearly distinguishable on its facts. In that case, the relevant NPDES permit had yet to be promulgated by the administrative agency, and administrative proceedings were pending on technical issues concerning the permit. In contrast, in this case, the NPDES permit already has been issued by DEP and the plaintiffs seek only its enforcement in this action. To the extent that any proceedings before DEP are relevant to this case, they involve the issue of diligent prosecution discussed in Section III.D., infra.
The court concludes that the doctrine of primary jurisdiction does not prevent it from exercising jurisdiction over this action to enforce an NPDES permit.
D. Diligent Prosecution
The defendant contends that the state, by bringing an abatement action against it in state court, was "diligently prosecuting" an action within the meaning of 33 U.S.C. § 1365(b)(1)(B),[5] and such purported diligent prosecution precludes a citizen suit pursuant to Section 1365(a). See Section 1365(b)(1)(B); Defendant's Memorandum I at 9-17. The plaintiffs maintain that a state proceeding brought several months after the commencement of this action and since concluded does not constitute "diligent prosecution" that would bar this action. Furthermore, the plaintiffs maintain that the state's action differed from this suit in important respects and that the state suit was intended to supplement, not preclude, this action. See Plaintiffs' Memorandum II at 3-5; Webb Aff.; Plaintiffs' Memorandum IV at 3-5.
On its face, the diligent prosecution provision of Section 1365(b)(1)(B) does not apply to a case in which the state did not take any enforcement action until after the citizen suit was filed.[6] The language of Section 1365(b)(1)(B) (captioned "Notice"), to the effect that "[n]o action may be commenced ... if the ... State has commenced" an action, clearly contemplates action prior to the filing of a citizen suit. Only where there has been such prior action is it possible to consider whether that action is "diligent prosecution" that would preclude the filing of the citizen suit. See Sierra Club v. Simkins Industries, Inc., supra, at 1125 (state administrative action initiated after the filing of a citizen suit does not fall within the ambit of Section 1365(b)(1)(B)). See also Friends of the Earth v. Consolidated Rail Corp., supra, slip op. at 62-63 (Section 1365(b)(1)(B)'s language should be strictly construed).
Apart from Sierra Club v. Simkins Industries, Inc., supra, in which the state agency acted after the citizen suit had been filed in federal court, all the cases that have considered Section 1365(b)(1)(B)'s diligent prosecution provision (and the analogous provision of the Clean Air Act, 42 U.S.C. § 7604(b)(1)(B)) deal with enforcement actions that commenced (and usually culminated) prior to the institution of the citizen suit. See Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corporation, 591 F. Supp. 345, 346-53 *216 (N.D.N.Y.1984), rev'd sub. nom, Friends of the Earth v. Consolidated Rail Corp., supra (state administrative action is not "diligent prosecution" under Section 1365(b)(1)(B)); Sierra Club v. SCM Corporation, 572 F. Supp. 828, 829-31 (W.D.N. Y.1983); Love v. New York State Department of Environmental Conservation, 529 F. Supp. 832, 843-44 (S.D.N.Y.1981); Gardeski v. Colonial Sand & Stone Company, Inc., 501 F. Supp. 1159, 1161-68 (S.D.N.Y.1980); NJSPIRG IV, supra, 759 F.2d at 1132-39; Baughman v. Bradford Coal Co., 592 F.2d 215, 216-19 (3d Cir.), cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979).
The court concludes that, in accordance with the unambiguous language of Section 1365(b)(1)(B), actions taken by the state after the filing of a citizen suit may not be considered as constituting "diligent prosecution" pursuant to that section.[7]
E. Validity of NPDES Permits Issued by DEP
The defendant's final argument goes to the very validity and enforceability of the NPDES permits issued by DEP. Specifically, the defendant contends that because certain "guidelines" that DEP used to set the effluent standards in the NPDES permit allegedly were not properly promulgated under the Uniform Administrative Procedure Act, Conn.Gen.Stat. §§ 4-177 4-182, the standards are not enforceable in this action. See Memorandum of Law in Support of Defendant's Motion in Opposition to Plaintiffs' Motion for Summary Judgment (filed May 11, 1984) ("Defendant's Memorandum II") at 5-12. The plaintiffs counter that an attack on the defendant's NPDES permit is inappropriate in this proceeding and that, in any case, the provisions of the NPDES permit are valid and enforceable. See Plaintiffs' Memorandum III at 5-11.
The defendant has failed to avail itself of two different fora in which it might have challenged its NPDES permit. First, the defendant did not commence an administrative challenge to the NPDES permit within 30 days of its issuance by DEP, as permitted by statute. See Conn.Gen.Stat. §§ 22a-430, 22a-436; Water Resources Commissioner v. Connecticut Sand and Stone Corporation, 170 Conn. 27, 31-32, 364 A.2d 208 (1975) (failure to pursue a timely administrative challenge to DEP order under predecessor statute precluded a subsequent challenge); Costle v. Meadow Haven, Inc., 32 Conn.Supp. 121, 342 A.2d 373, 373-74 (Conn.Super.1975) (same).
By failing to challenge its NPDES permit under state law at a time when its purported legal deficiency should have been as apparent to the defendant as it is now, the defendant is precluded from doing so in this action.[8]
Second, the defendant could have filed an application for review (in the United States Court of Appeals), challenging EPA's approval *217 of the state's allegedly invalid NPDES permit program. See 33 U.S.C. § 1369(b)(1); Peabody Coal Company v. Train, 518 F.2d 940, 941-43 (6th Cir.1975) (dismissal of challenge to state plan under Section 1369(b)(1) as untimely); Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 290-291 (2d Cir.1976) (same with respect to a federal permit, see note 8, infra).[9]
This case is clearly distinguishable from Sierra Club v. Indiana-Kentucky Electric Corporation, 716 F.2d 1145, 1148-51 (7th Cir.1983), in which state environmental standards under the different procedures of the Clean Air Act were held to be unenforceable in a federal action because a state court had found that the standards had not been properly promulgated pursuant to state law. In contrast, in this case, there is no ruling by a state court that any NPDES permits issued by the DEP are invalid for procedural reasons.[10] Furthermore, Sierra Club v. Indiana-Kentucky Electric Corporation, supra, 716 F.2d at 1150-51, stands for the proposition that state courts are the preferred, if not the mandatory, forum in which to challenge a state's promulgation of environmental standards.
For the reasons stated above, the defendant may not raise the issue of the validity of its NPDES permit in this enforcement proceeding.[11]Cf. Adamo Wrecking Co. v. United States, 434 U.S. 275, 287, 98 S. Ct. 566, 574, 54 L. Ed. 2d 538 (1978) ("narrow inquiry" in criminal enforcement *218 proceeding concerning violation of environmental standard does not include examination of the validity of the procedures used to promulgate that standard).
IV. Summary Judgment for Plaintiffs
Courts have granted summary judgment for plaintiffs in numerous citizen suits brought pursuant to Section 1365 on the issue of liability. The decisions in these cases were based on findings of strict liability derived from discharge data reported in defendants' DMRs that exceeded levels allowed by NPDES permits. See, e.g., NJSPIRG I, supra, 602 F.Supp. at 1399-1400, NJSPIRG v. Fritzsche, Dodge & Olcott, 579 F. Supp. 1528, 1528-39 (D.N.J.), aff'd, NJSPIRG IV, supra, 759 F.2d at 1139; NJSPIRG III, supra, 22 Env't Rep. Cas. (BNA) at 1151-54; Sierra Club v. Raytheon Co., supra, 22 Env't Rep.Cas. (BNA) at 1051-52, 1055; Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., Civ. No. 84-0366-R (E.D.Va. Aug. 28, 1984) (Merhige, J.); Chesapeake Bay I, supra, at 1556-60; Sierra Club v. Simkins Industries, Inc., supra, at 1126-27. It is undisputed that the defendant's DMRs show that the defendant violated the terms of its NPDES permit on at least 174 occasions.[12] In these circumstances, the plaintiffs' Motion for Summary Judgment should be granted.
Conclusion
For the reasons stated above, the plaintiffs' Motion for Partial Summary Judgment is granted and the defendant's Motion to Dismiss is denied.
If the parties are unable to reach agreement by October 15, 1985 on the relief that ought to be granted as a result of this ruling, the parties shall file by that date proposed orders and memoranda with respect to the relief that would be appropriate in these circumstances. In preparing their papers on the issue of relief, the parties shall acquaint themselves with decisions by other district courts on the subject. See, e.g., Chesapeake Bay II, supra, at 1552-65.
It is so ordered.
NOTES
[1] This case originally was assigned to the docket of Judge M. Joseph Blumenfeld, Senior United States District Judge. With the consent of Judge Blumenfeld and other transferor judges, and pursuant to an Order of Transfer and Reassignment (entered Aug. 2, 1984 by Chief Judge T.F. Gilroy Daly) this case and other similar pending cases brought by the plaintiffs in this District were transferred to my docket. Nineteen such cases are now pending, not including several in which consent decrees have been entered. This case is one of three in which summary judgment motions have been fully briefed and argued.
[2] The EPA Administrator has issued the necessary approval to the DEP to issue NPDES permits. See Plaintiffs' Statement Pursuant to [Local] Rule 9[c] in Support of Their Motion for Summary Judgment ¶ 3, attached to Notice of Motion (filed Mar. 2, 1984).
[3] Bertha Building Corp. v. National Theatres Corp., 269 F.2d 785 (2d Cir.1959), cert. denied, 361 U.S. 960, 80 S. Ct. 585, 4 L. Ed. 2d 542 (1960) is distinguishable because it interpreted Section 2462 (in dicta) in an era preceding the advent of citizen suits. A citizen suit is analogous to a qui tam action (to which Section 2462 is applicable) but in some ways is closer to a suit on behalf of the government, in contrast with the private action that was considered in Bertha Building Corp. v. National Theatres Corp. For example, whereas the penalties in a purely private action or a qui tam action inure in whole or in part to a prevailing plaintiff, the penalties in a citizen suit under Section 1365 inure exclusively to the United States Treasury. See Chesapeake Bay I, supra, 608 F.Supp. at 449-50. In other words, our Court of Appeals, if faced with the question today, probably would include citizen suits within the ambit of Section 2462. In any case, as noted herein, the prevailing standard permits the application of analogous federal statutes of limitations in circumstances where there is no explicit federal limitation and application of a state limitations period is inappropriate. This issue is not discussed in Bertha Building Corp. v. National Theatres Corp., supra.
[4] The defendant goes on to claim that injunctive relief is inappropriate because the plaintiffs have failed to allege current violations by the defendant of its NPDES permit, and therefore that the plaintiffs are entitled to no relief. See Defendant's Memorandum I at 21. Assuming arguendo that the defendant's view of relief obtainable pursuant to Section 1365(a) were correct, the plaintiffs sufficiently have alleged ongoing violations by the defendant of its NPDES permit. See Affidavit of James Thornton (executed Mar. 1, 1984), ¶ 11 attached to Notice of Motion (filed Mar. 2, 1984); Complaint (filed Nov. 17, 1983), ¶ 17. Such violations may well be considered at a later stage of these proceedings. In any event, prospective relief for the effects of past violations is available pursuant to Section 1365. See Illinois v. Outboard Marine Corporation, Inc., 680 F.2d 473, 478-81 (7th Cir.1982) (Wisdom, J., sitting by designation) (remedies available for violations of expired permit in suit under Section 1365).
[5] 33 U.S.C. § 1365(b)(1)(B) provides in pertinent part:
No action may be commenced
(1) under subsection (a)(1) of this section
* * * * * *
(B) if the Administrator [of EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. [emphasis supplied]
[6] 33 U.S.C. § 1365(b)(1)(A) requires that potential citizen plaintiffs provide notice to EPA, the state, and the potential defendant of the alleged violations sixty days prior to commencing an action pursuant to Section 1365(a). This notice provision is intended to give EPA and the state a chance to institute action that might preclude the need for a citizen suit. In this case, there is no dispute that proper notice was given and that the state took no action until after the plaintiffs commenced their suit. See Section I, ¶¶ 4-9, supra.
[7] Assuming arguendo that, contrary to the clear wording of Section 1365(b)(1)(B), the commencement of an action by the state in state court after the commencement of a citizen suit may under some circumstances come within the ambit of Section 1365(b)(1)(B), the action commenced by the state against the defendant probably does not constitute "diligent prosecution" that would preclude the plaintiffs' action. The plaintiffs contend that the state action cannot constitute such "diligent prosecution" because of basic differences in scope and objectives between that suit and their own. See Plaintiffs' Memorandum II at 3-5; Webb Aff. They assert that the state action was intended to supplement, not to preclude, their action and that "the state's action referred only to the scheduling order, and its resolution does not require compliance with the permit in the future or impose penalties for its past violation." Id. at 4. Cf. Brewer v. City of Bristol, 577 F. Supp. 519, 525-26 (E.D.Tenn.1983) (citizen suit should not be dismissed on ground of "diligent" state prosecution where state's suit may not adequately protect rights of parties).
[8] The defendant claims that the state statutory provisions do not comport with due process in a case such as this, where the defendant allegedly did not encounter problems with its NPDES permit until more than 30 days after DEP issued the permit. Assuming arguendo that the defendant did not have constructive notice that, given its levels of effluent discharge, the NPDES permit might be questionable, there is no indication in the record that it ever attempted to initiate any formal action concerning the validity of the permit with DEP or in the state courts. See Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 290-92 (2d Cir.1976) (dismissal of challenge under 33 U.S.C. § 1342(b) to a federal permit; no equitable tolling for untimely challenge to discharge permit where defect allegedly arose after the 90-day statute of limitations expired because defendant had actual or constructive knowledge of the defect and, in any event, defendant failed to take any action within 90 days of when it admitted knowledge of the defect). In light of this failure to make any challenge, timely or otherwise, to the validity of its NPDES permit until faced with an enforcement action in federal court, the defendant is estopped from attacking the validity of its NPDES permit under state law in this forum.
[9] Presumably, the defendant also could have instituted an action in state court to compel DEP to promulgate the regulations that it thought were necessary.
[10] The Commissioner of DEP has rejected administrative challenges to the legality of the state's NPDES permit process. See Proposed Decision and Final Decision, In re United Technologies Corporation, Pratt & Whitney Aircraft Group, NPDES permit # CT 000 1376, Exhibits 1 and 2, attached to Affidavit of Katherine H. Robinson (executed Jan. 14, 1985) ("Robinson Aff. I"); Proposed Decision and Final Decision, In re United Technologies Corporation, Pratt & Whitney Aircraft Group, NPDES permit # 000 1384, attached to Affidavit of Katherine H. Robinson (executed Aug. 13, 1985) ("Robinson Aff. II"). The appeals of the final decision in those cases, see Robinson Aff. I, Ex. 3; Robinson Aff. II, Ex. 3, have been withdrawn. See Robinson Aff. I, ¶ 5; Robinson Aff. II, ¶ 6.
[11] Cf. Appalachian Power Co. v. Environmental Protection Agency, 579 F.2d 846, 854-55 (4th Cir.1978) (suggesting in dictum that failure to pursue a challenge in state court could deny the party standing to raise the challenge in federal court.
Assuming arguendo that the defendant properly could attack the validity of its NPDES permit in this proceeding and that regulations underlying the permit were not properly promulgated, it is still unlikely that the defendant could prevail on this issue. First, there is authority to support the proposition that NPDES permits are enforceable prior to the adoption of supporting regulations. See Natural Resources Defense Council v. Train, 510 F.2d 692, 709 (D.C.Cir. 1974) (validity of permits issued by EPA prior to promulgation of regulations); United States v. Velsicol Chemical Corp., 438 F. Supp. 945, 950 (W.D.Tenn.1976) (same in enforcement action); United States v. Cutter Laboratories, Inc., 413 F. Supp. 1295, 1295-99 (E.D.Tenn.1976) (same). This case is clearly distinguishable from Sierra Club v. Indiana-Kentucky Electric Corporation, supra, 716 F.2d at 1153-54 (standards that state improperly promulgated under the Clean Air Act have no interim application; remedy is for EPA to implement standards). As noted above, the standards in that case had been successfully challenged in state court on procedural grounds whereas the standards in this case have not.
Second, the defendant would not necessarily prevail, even if it is correct in arguing that the NPDES permit's discharge limits are invalid. In this respect, the defendant's argument proves too much. If the NPDES permit is indeed invalid, every discharge by the defendant might be illegal because no discharge is permitted in the absence of an NPDES permit. See 33 U.S.C. §§ 1311(a), 1342. The defendant's argument that its NPDES permit, which it alleges to be invalid but never bothered to challenge, allows it to discharge effluents but imposes no enforceable duty on it to limit its discharge is unpersuasive. The result suggested by the defendant would allow it to flout its NPDES permit that it relied on and tacitly accepted for years until faced with a citizen suit in federal court that seeks to enforce the permit.
[12] The defendant's bald assertion that `DMR's cannot be used as the basis for strict liability under the [Act] since these reports do not accurately reflect the amount of effluents being discharged due to laboratory error[,]" see Defendant's Memorandum III at 17, does not present a disputed issue of material fact required to avoid summary judgment pursuant to Rule 56, Fed.R. Civ.P. See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) ("litigant opposing summary judgment `may not rest upon mere conclusory allegations' ... [but] must bring to the district court's attention some affirmative indication that his version of relevant events is not fanciful"). The absence from the record of any significant evidence supporting the defendant's assertion clearly distinguishes this case from Friends of the Earth, supra, 618 F. Supp. 532, 22 Env't Rep.Cas. at 1146 (summary judgment based on data in DMRs not appropriate where "defendant ... offered a multitude of justifications for the alleged violations, along with convincing arguments why many of the alleged violations should not actually constitute violations [e.g., typographical mistakes in the DMRs].") The defendant's feeble attempt to dispute the accuracy of its DMRs is less substantial than similar challenges in the cases cited in the accompanying text in which summary judgment was granted based only on defendants' DMRs.
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552 S.E.2d 834 (2001)
274 Ga. 220
GREENE
v.
The STATE.
No. S01A1048.
Supreme Court of Georgia.
September 17, 2001.
*835 Phyllis V. Harris, Dallas, for appellant.
Tambra P. Colston, Dist Atty., Martha P. Jacobs, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Madonna M. Heinemeyer, Asst. Atty. Gen., for appellee.
HUNSTEIN, Justice.
Melvin Greene, Sr. was convicted of the felony murder of Leroy Bryant, Jr. and sentenced to life imprisonment.[1] He appeals and we affirm.
1. The jury was authorized to find that on the evening of September 25, 1999 Greene and the victim became involved in an altercation outside a convenience store. The victim harassed Greene and Greene responded by breaking a beer bottle over the victim's *836 head. The victim retreated across the street, where he picked up a stick and taunted Greene. Greene's friends told him to leave the victim alone and offered to buy him another beer. While his friends were collecting money and purchasing the beer, Greene threw rocks across the street at the victim. Greene then crossed the street and he and the victim began to fight. During this altercation, the victim struck Greene with the stick, and Greene lunged at the victim with a knife, fatally stabbing the victim in the heart.
We find the evidence sufficient to enable a rational trier of fact to find Greene guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
2. Greene contends the trial court erred by admitting as a similar transaction evidence of his 1989 conviction for aggravated assault because the State failed to prove that the prior conviction was similar to the crime charged. Evidence of similar transactions may be admitted if there is sufficient evidence that the accused committed the offense or act and that there is a sufficient connection or similarity between the offense and the crime charged, so that "proof of the former tends to prove the latter." Williams v. State, 261 Ga. 640, 642, 409 S.E.2d 649 (1991). The evidence may not be admitted if it is done so merely to "raise an improper inference as to the accused's character." Id.
The State presented evidence establishing that in 1989 a couple made insulting racial remarks to Greene at a restaurant. Although Greene's friends tried to dissuade him, Greene followed the couple outside to the parking lot, where Greene and the man fought. During the altercation, Greene attacked the man with a knife, stabbing him over both eyes and in his neck in an attempt to cut his jugular vein. Based on this evidence, we find the trial court did not err in admitting evidence of the 1989 assault to show Greene's intent, bent of mind, and course of conduct in the stabbing in the present case. In both instances, Greene was verbally provoked, he had the opportunity to retreat, his friends encouraged him to retreat, he further engaged his victim, he stabbed both victims in a lethal manner, and he later claimed he acted in self-defense. Greene's conduct and choice of action were nearly identical in both instances and he was convicted in the previous incident, thereby establishing that Greene committed the previous act. Accordingly, we find sufficient similarities between the two incidents so that proof of the 1989 incident and conviction tended to prove and support the evidence of the crime charged.
We reject Greene's contention that evidence of the similar transaction was inadmissible because the prior incident involved a racial epithet and the knife used in that assault was somewhat larger in size. Greene "erroneously focuses upon the differences between the prior and instant [assaults] rather than correctly focusing upon their similarities." Farley v. State, 265 Ga. 622, 624(2), 458 S.E.2d 643 (1995).
3. Greene contends the trial court erred in refusing to continue the trial to allow him time to obtain new counsel. Whether to grant a motion for continuance is entirely within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Young v. State, 237 Ga. 852, 855, 230 S.E.2d 287 (1976). In this case, there is no evidence that Greene requested new counsel or at any time expressed dissatisfaction with his attorney. Although defense counsel did raise a potential conflict of interest with a State's witness prior to trial, the trial court found no conflict existed and the record shows that Greene was prepared at that time to provide a waiver in order to retain his counsel. Moreover, had Greene wished to obtain new counsel because of the perceived conflict, the month-long continuance of trial due to defense counsel's illness provided sufficient time for Greene to do so. We find no abuse of discretion.
4. Nor did the trial court abuse its discretion in denying Greene's motion for continuance to allow him time to review the record and transcript of his 1989 conviction and to obtain the victim's criminal history. Greene had access to the State's entire file for at least a year before the start of trial and pursuant to court order had access to the *837 record of his 1989 conviction more than a month before trial. As for the victim's criminal history, Greene requested this information from the State just three days before trial and failed to give the State timely notice of his intent to use the information at trial. See Uniform Superior Court Rule 31.1. Nevertheless, the State provided Greene with all criminal records on the victim in its possession. Because Greene had ample opportunity to obtain and review the information and documents he requested and the available criminal history was provided to Greene even though not timely requested, we find the trial court did not abuse its discretion in denying the motion for continuance. See OCGA § 17-8-22. Moreover, Greene has failed to demonstrate any harm from the denial of the motion for continuance. See Roberts v. State, 272 Ga. 822, 824(2), 537 S.E.2d 86 (2000).
Judgment affirmed.
All the Justices concur.
NOTES
[1] The crimes occurred September 25, 1999. Greene was indicted in Floyd County on four counts: felony murder, aggravated assault, voluntary manslaughter, and recidivism. Trial was held February 12-15, 2001 and Greene was found guilty of felony murder and aggravated assault and sentenced to life imprisonment for felony murder. The aggravated assault conviction merged with the felony murder conviction as a matter of law. Greene filed a notice of appeal on March 13, 2001, the appeal was docketed in this Court on May 5, 2001, and submitted for decision on the briefs on June 4, 2001.
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grossman v ciba
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-207-CV
WALTER G. GROSSMAN AND GEORGIA S. GROSSMAN, INDIVIDUALLY
AND AS REPRESENTATIVES AND NEXT FRIENDS OF SIDNEY JOSEPH GROSSMAN,
A MINOR, AND AS REPRESENTATIVES AND HEIRS AT LAW OF THE ESTATE OF
SAMUEL DAVID GROSSMAN, DECEASED AND BEVERLY G. REEVES, ATTORNEY,
APPELLANTS
vs.
CIBA PHARMACEUTICAL COMPANY, A DIVISION OF CIBA-GEIGY
CORPORATION, W. WAYNE GRANT, M.D., ALLEN SONSTEIN, M.D.
AND J. DOUGLAS HUDSON, M.D.,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. 454,281, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING
The Grossmans appeal the trial court's judgment, asserting in five points of error
that the court erred by refusing to strike two jury panel members for cause, thereby forcing the
Grossmans to exercise two peremptory challenges and then accept an objectionable juror when
they had no strikes remaining. The Guardian Ad Litem for Sidney Grossman ("the Guardian")
appeals the amount of compensation awarded her and the allocation of her fee. Appellees
complain by cross-point that no fees should have been assessed against them as the prevailing
parties at trial. We will affirm the trial court's judgment.
The Grossmans brought a wrongful death and survival action against appellees
based upon alleged negligence, breach of warranty, and other acts that resulted in the death of
Samuel Grossman. During the voir dire, the Grossmans challenged two members of the jury
panel on the ground that they were biased and therefore must be excused for cause. The trial
court overruled the challenges and permitted the two members to remain on the panel.
During voir dire, Mary Weir Ziegler volunteered that a few months earlier her
husband had received a monetary award from Ciba Pharmaceutical Company, a defendant in the
lawsuit, but that this fact had no bearing on her or her jury service. She admitted she might
"lean" toward the medical profession since both she and her husband were biochemists and he
worked with doctors. She explained that she "could be fair about it" and that she revealed this
information merely to be honest about her background. She answered "probably" when asked
whether she would "tend to perhaps give" Ciba's experts more credibility. By this she meant that
she had no prejudice against drug manufacturers and that "chemical" was not a bad word in her
mind. She insisted that her husband's connection with Ciba and the drug industry would not affect
her, that she could be a fair juror, and that she could decide the case based upon the evidence at
trial. Ziegler stressed that as a juror she would attempt to balance her personal feelings, which
as a parent included sympathies for the Grossmans.
The parties also questioned Ziegler about her views concerning a bystander's right
to recover damages. She disagreed that the law should impose liability for emotional harm
suffered by anyone who viewed an accident. The court informed her that Texas law does not
allow such a wide-ranging theory of recovery. She candidly expressed independent opinions on
theories of liability and on damages and stated that she would need psychiatric evidence in order
to award damages for emotional distress. Her answers reflected some confusion as to the jury's
role in deciding the law. After the court informed her that the jury decides only factual issues and
the court would determine all legal matters, she expressed confidence that she could answer the
questions posed in the jury charge based upon the evidence without regard to the effect of her
answers.
Susan Abold, the second jury panelist at issue, stated that her father had been a
doctor who conducted drug research, which might influence her, but she thought she could be
objective. Her sympathies lay with the appellees but she felt she could overcome these tendencies
and be objective. She once referred to herself as biased, yet several times she agreed that she
could base her decision as a juror on the evidence presented at trial. She expressed general
concern about a liability crisis involving ever-increasing damages awarded to plaintiffs. However,
when asked if she could award appellants the amount of damages proven by the evidence, even
five million dollars, she answered that she could. She further stressed that her concerns about
high damage awards would not affect her treatment of liability issues.
The trial court awarded each side, including appellants, two additional peremptory
challenges, for a total of eight. Before exercising the challenges, appellants again requested that
the court excuse the two jurors for cause. Appellants further suggested the court do so and then
reduce the peremptory challenges to six. Upon the denial of their challenges for cause, the
Grossmans informed the court that they would use two peremptory challenges to remove Ziegler
and Abold. They further asserted that two panel members they found objectionable, Foley and
DeLeon, would remain on the panel after their peremptory challenges were exhausted. Foley
subsequently served on the jury. The trial court again refused to excuse Abold and Ziegler, and
appellants then used their two additional challenges on these two panelists. After trial, pursuant
to the jury's verdict, the court rendered a take-nothing judgment against the Grossmans.
The Grossmans complain of the court's refusal to excuse Ziegler and Abold for
cause. See Tex. R. Civ. P. 228. By statute, a person is disqualified from jury service if he "has
a bias or prejudice in favor or against a party in the case." Tex. Gov't Code Ann. § 62.105(4)
(West Supp. 1992). One may be disqualified due to a bias or prejudice against the subject matter
of the litigation, as well. Compton v. Henrie, 364 S.W.2d 179, 185 (Tex. 1963). Prejudice is
defined as prejudgment, including bias. Id. at 182. Bias reflects an inclination toward one side
of an issue but does not constitute a disqualification unless "the state of mind of the juror leads
to the natural inference that he will not or did not act with impartiality." Id.
A jury panelist may be biased so as to be disqualified as a matter of law. If so, the
court has no discretion and must dismiss the panelist. Id. When disqualification is not
conclusively established as a matter of law, whether a panelist is biased or prejudiced is a factual
determination for the trial court and it is within the court's discretion to find whether bias
nonetheless exists. Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex. 1963). When a court fails
to find bias, the question on appeal is whether it capriciously disregarded the competent evidence.
Sullemon v. U.S. Fidelity & Guar. Co., 734 S.W.2d 10, 14-15 (Tex. App.--Dallas 1987, no writ).
Appellate courts must consider all the evidence in the light most favorable to upholding the ruling
below. Compton, 364 S.W.2d at 182; Sullemon, 734 S.W.2d at 15; Gum v. Schaefer, 683
S.W.2d 803, 807 (Tex. App.--Corpus Christi 1984, no writ).
In order to preserve error for refusal to excuse a panelist for cause, a party must
advise the court, prior to exercising its peremptory challenges, that it will exhaust these challenges
and thereafter specific, objectionable jurors will remain. Hallett v. Houston Northwest Medical
Ctr., 689 S.W.2d 888, 890 (Tex. 1985). Appellees claim that the Grossmans' failure to comply
with procedural requirements prevents us from reaching the merits of their appeal. First, they
insist that a party must specify in which order it would have used its peremptory challenges upon
the objectionable jurors who remain on the panel as a result of the denial of its motion to excuse
others for cause. Specifically, they argue the Grossmans should have designated whether they
found DeLeon or Foley more objectionable.
Appellees cite no authority supporting such a contention. Indeed, in Sullemon, one
court of appeals refused to add any requirements to those outlined by the supreme court in Hallett.
It stated that the complaining party need not request additional challenges nor give reasons why
it finds the potential jurors who remain objectionable. Sullemon, 734 S.W.2d at 13-14.
Next, appellees contend that even if the trial court erred, this action was rendered
harmless by the unanimous verdict returned by the jury. Even if Foley had not been on the jury,
they argue, at least an 11-to-1 verdict in their favor would still have been returned. They cite two
recent cases that suggest such reasoning is valid, Galvan v. Aetna Casualty Insurance Co., 831
S.W.2d 39, 40 (Tex. App.--El Paso 1992, writ denied) and Beavers v. Northrop Worldwide
Aircraft Services, Inc., 821 S.W.2d 669, 681 (Tex. App.--Amarillo 1991, writ denied). Both cases
used this logic as an alternate ground for their holdings, citing Palmer Well Services, Inc. v. Mac
Trucks, Inc., 776 S.W.2d 575 (Tex. 1989), in which the supreme court found as a matter of law
that harmful error existed when a juror who had been indicted for a felony was incorrectly
allowed to serve and a 10-to-2 verdict was returned. Id. at 577.
Palmer, however, did not hold that error in failing to exclude jurors for cause is
always harmless when a jury returns a unanimous verdict. It merely pointed out that without the
disqualified panelist the remaining nine qualified jurors could not have returned a verdict.
Furthermore, Palmer involved the clear situation where disqualification was based on a panelist's
felony indictment, and the harmless error doctrine might arguably apply if a unanimous verdict
were involved. When a juror should have been excluded for bias or prejudice, however, an
absence of harm simply cannot be assumed where the biased juror may assert influence over other
members of the jury, even though the fact may not be shown. See Tex. R. Civ. P. 327(b).
Assuming the Grossmans' complaint of error is preserved, the question is whether
Ziegler and Abold should have been excused for cause. Several cases have involved similar
questions of suggested bias. Such was the situation in McBroom v. Brown, 277 S.W.2d 310 (Tex.
Civ. App.--Beaumont 1955, writ ref'd n.r.e.). The juror at issue said at one point he could not
render a fair and impartial verdict, yet elsewhere insisted he could follow the evidence to reach
an appropriate result. The court held that a question of fact was presented by such conflicting
answers and therefore the lower court's ruling must be upheld. Id. at 313. In Sullemon, a juror
professed that he might not follow the court's legal definition of "total incapacity" but later said
he would try to disregard this tendency when examining the evidence. 734 S.W.2d at 16. In
Ratcliff v. Bruce, 423 S.W.2d 614 (Tex. Civ. App.--Houston [14th Dist.], writ ref'd n.r.e.), cert.
denied, 393 U.S. 848 (1968), a potential juror in a lawsuit against several physicians was herself
the wife of a doctor. The court found she was qualified to serve when she insisted she would be
honest and fair. Compton, the seminal Texas case on bias, involved a juror who disapproved of
anyone who sued to recover for an injury, insisting that he himself would "grin and bear it." 364
S.W.2d 179. Nevertheless, the trial court refused to excuse him for cause and the supreme court
overturned the appellate court's holding that he was disqualified.
In examining the record, we decline to hold that either panelist was proven to be
biased as a matter of law. Further, viewing the evidence in the light most favorable to the ruling,
neither was the trial court's failure to find them biased or prejudiced contrary to the evidence so
as to constitute an abuse of its discretion. Both gave conflicting answers when asked whether they
could judge the case fairly. Although the trial court observed that Abold was "close to the line"
of disqualification, it was better able to observe the panelists' demeanor and reactions to the
questions asked and determine their ability to serve impartially. We overrule the Grossmans' five
points of error, all of which relate to the issue of bias.
In a single point of error, the Guardian appeals the trial court's award of her fee,
assessed as a court cost. She first complains that the amount awarded her, $10,000, was
insufficient to compensate her for her work. She asks that this Court award her $88,000, the
amount she claims to be the value of her effort.
The fee awarded a guardian ad litem lies within the discretion of the trial court and
will not be overturned unless a clear abuse of discretion is apparent from the record. Simon v.
York Crane & Rigging Co., 739 S.W.2d 793, 794-95 (Tex. 1987); Celanese Chem. Co., Inc. v.
Burleson, 821 S.W.2d 257, 260 (Tex. App.--Houston [1st Dist.] 1991, no writ). The issue is not
whether the appellate court agrees with the amount or would have awarded a greater sum, but
whether the trial court properly exercised its discretion. We cannot say that the record reflects
an abuse of discretion on the part of the trial court.
A guardian ad litem represents a minor only where its parents' interests diverge
from its own. Davenport v. Garcia, 834 S.W.2d 4, 24 (Tex. 1992). The trial court therefore
determined that the sum of $10,000 adequately compensated the Guardian for the time spent in
pursuance of her duty to represent a minor to the extent the minor's interest was adverse to its
parents and may have determined a portion of the Guardian's work concerned matters which
presented no such conflict. See Tex. R. Civ. P. 173.
The Guardian complains that the only "evidence" before the court was her own
assessment of the value of her time and in effect argues that the court was bound to accept and
rule in accordance with her testimony. The finder of fact may accept or agree with all, part, or
none of a witness's testimony about the work performed, its necessity, and its value. The
evidence, however persuasive, is not binding or dispositive of the matter. Although an appointed
attorney is entitled to reasonable compensation, we know of no rule that a court-appointed ad litem
must be compensated at the rate properly chargeable in other instances of employment. Granted,
the trial was long and involved, and the trial court believed the Guardian's participation was
valuable in reaching a just result. But the trial court may have determined that the fee awarded
was commensurate with the parties' ability to pay and the result achieved. The court had
witnessed the entire trial and had sufficient information upon which to base its award.
Furthermore, it is well established that there need not be any evidence in the record to support the
court's award of ad litem fees. Alford v. Whaley, 794 S.W.2d 920, 925 (Tex. App.--Houston [1st
Dist.] 1990, no writ); Transport Ins. Co. v. Liggins, 625 S.W.2d 780, 785 (Tex. App.--Fort
Worth 1981, writ ref'd n.r.e).
The Guardian also complains that the trial court erred by assessing only half of the
ad litem's fee against the appellees. She would have us force the appellees, the prevailing parties,
to pay the entire sum awarded her. She cites no authority supporting her contention that failure
to assess all her fee against appellees constitutes error. Appellees, on the other hand, insist in
their cross-point of error that as prevailing parties they should not be required to pay any ad litem
fees; instead, all of her fee should be assessed against the Grossmans, as normally the losing party
must pay all court costs. Tex. R. Civ. P. 131.
The trial court in its discretion may assess all or part of the costs against the
prevailing party as long as "good cause" exists. Tex. R. Civ. P. 141. Unless the record
demonstrates an abuse of discretion, the trial court's assessment of costs for good cause should
not be disturbed on appeal. Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985).
An appellate court should scrutinize the record to determine whether it supports the trial court's
decision to tax the prevailing party with the costs. Id.
We hold that the record reflects evidence from which the trial court could determine
good cause existed for assessing a portion of the costs against appellees. For example, appellees
originally agreed that an ad litem for the child should be appointed. Later, after the Guardian had
spent significant time successfully opposing appellees' motion for summary judgment, appellees
attempted to terminate her participation at trial. The court could have found that these tactics,
while acceptable, required additional work by the Guardian and were thus grounds for assessing
part of the ad litem costs against appellees. We overrule appellees' cross-point.
For the same reasons, we cannot find an abuse of discretion in the court's refusal
to apportion all of the costs against the prevailing party. The lower court assessed costs equally
between the parties, just as the trial court did in Rogers. The record supports this allocation.
Moreover, the Guardian fails to cite authority that gives her standing to complain about which
party is ordered to pay her fee. The Grossmans do not challenge by a specific point of error the
award of fees against them. We overrule the Guardian's point.
As we have overruled the Grossmans' points of error, we need not reach appellees'
cross-points relating to other issues in the trial. The judgment is affirmed.
Marilyn Aboussie, Justice
[Before Justices Powers, Aboussie and B. A. Smith; Justice Powers not participating]
Affirmed
Filed: December 23, 1992
[Do Not Publish]
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opinion
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-186-CV
IRVING WALLERSTEIN,
APPELLANT
vs.
JOSEPH H. DOMBERGER, JACQUELINE DOMBERGER, AND ANTON VASSIL, JR.,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 92-01490, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
Joseph H. Domberger, Jacqueline Domberger, and Anton Vassil, Jr. sued Irving
Wallerstein for allegedly breaching his fiduciary responsibilities as the general partner of the
Ridge General Partner, Ltd. They also requested that Wallerstein be enjoined from engaging in
certain activities pending a trial on the merits. Following a hearing, the trial court issued a
temporary injunction. Wallerstein seeks review of this interlocutory order.
In seven points of error, Wallerstein challenges the trial court's order and claims
that (1) there is insufficient evidence to support the findings of irreparable harm and lack of an
adequate remedy at law, (2) the relief granted is beyond the scope of the plaintiff's pleadings and
is not warranted by the evidence, and (3) the relief granted effectively modifies the contract
between the parties. We will overrule the seven points of error and affirm the trial court's order.
BACKGROUND
Wallerstein, the Dombergers, and Vassil formed two limited partnerships for the
purpose of owning and operating the Ridge Apartments (the "Ridge") located in Austin, Texas.
The Dombergers and Vassil, who reside in Germany, are limited partners of Ridge General
Partner, Ltd. and Ridge Apartments, Ltd. Wallerstein is the general partner of Ridge General
Partner, Ltd. and is a limited partner of Ridge Apartments, Ltd. As such, he conducts the
business affairs of the partnerships and is obligated to provide the limited partners with quarterly
and annual operating reports as set forth in Article VI of the agreements. Section 3.01 of the
partnership agreements sets forth certain actions which require approval of two-thirds of the
partnership interests; these include voluntarily borrowing money in excess of $50,000 in the name
of the partnership and the selection of a management and leasing company to perform the
management duties of the Ridge.
During 1990, Wallerstein secured two loans in the name of the Ridge for purposes
unrelated to the partnership. One of the notes was in the amount of $40,000 and the other was
in the amount of $165,000. The parties stipulated that the limited partners were not informed of
Wallerstein's pledge of the Ridge's certificate of deposit as collateral to secure the $165,000 loan
and the transaction was not included in the operating reports for approximately ten months.
However, there is a dispute as to whether one or more of the limited partners was aware of
Wallerstein's pledge of the Ridge's funds to secure the $40,000 loan to pay the taxes of another
business enterprise. (1)
The limited partners allege that just prior to their bringing this suit, Wallerstein (1)
moved Wallerstein Realtors, a separate business entity, and his son into the Ridge without signing
leases or paying rent; (2) terminated the Ridge's management agreement with the Republic Group
and replaced it with Wallerstein Realtors without notifying the limited partners and acquiring
approval from two-thirds of the partnership interests; (3) instructed the Republic Group to write
a check to Wallerstein Realtors in the amount of cash on hand in the Ridge's accounts; and (4)
deposited the money into Wallerstein Realtors' account "until he decided how to set up the new
Ridge account." Upon notice from the limited partners that these actions violated the partnership
agreement, Wallerstein terminated his agreement with Wallerstein Realtors, dismissed the Ridge's
on-site property manager, and employed some individuals to assist him in the management of the
property who allegedly either had previously been employed by Wallerstein Realtors or who may
have worked for entities Wallerstein controlled.
The limited partners petitioned the court to enjoin Wallerstein from acting as
manager of the property and to appoint a trustee or receiver pending a trial on the merits. They
noted that without Wallerstein's approval, they could not muster a consensus of two-thirds of the
partnership interests. Since he would not agree to the selection of a third-party management
company, they argued they were prevented from discharging him from his duties. Based upon
these facts, the trial court granted a temporary injunction enjoining the parties from engaging in
any activity other than what is set forth in the temporary injunction. The court further ordered
that, if the parties could not agree to Wallerstein acting as interim property manager of the Ridge,
it would appoint a third-party property management company to assume the management
responsibilities pending a trial on the merits. Wallerstein brings this appeal challenging the order
granting the temporary injunction.
DISCUSSION
A party may appeal an interlocutory order only under circumstances set forth by
statute, one of which is the granting of a temporary injunction. See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014 (West 1986). The question on appeal from an order granting temporary injunction
is whether the trial court abused its discretion in granting the request for injunctive relief.
A trial court may grant a temporary injunction if (1) the applicant is entitled to the
relief demanded and it is necessary to restrain some prejudicial act against him, (2) a party or
someone on his behalf engages in or is about to engage in activities in violation of the subject
matter of the suit which would tend to render the judgment ineffectual, (3) it is equitable and
permitted by statute, (4) it prevents a cloud from being placed on the title to real property under
certain circumstances, or (5) there is a threat of irreparable injury to real or personal property,
irrespective of any remedy at law. See Tex. Civ. Prac. & Rem. Code § 65.011 (West 1986 &
Supp. 1992).
In a hearing on an application for temporary injunction, the trial court's sole
purpose is to determine whether an injunction is necessary to preserve the status quo pending a
trial on the merits. Transport Co. of Tex. v. Robertson Transps., Inc., 261 S.W.2d 549, 552
(Tex. 1953). Where the pleadings and evidence demonstrate probable injury and a probable right
of recovery, the trial court has broad discretion in determining whether to issue a temporary
injunction and will be reversed only on a showing of an abuse of discretion. Id. An abuse of
discretion occurs when the trial court's decision to grant the temporary injunction is arbitrary and
capricious. Landry v. Travelers Ins. Co., 458 S.W.2d 649 (Tex. 1970).
By points of error two and three, Wallerstein contends that there is insufficient
evidence to show irreparable harm and lack of an adequate remedy at law. However, it is not
always necessary to show both irreparable harm and lack of an adequate remedy at law where the
principles of equity require the granting of injunctive relief despite the existence of a remedy at
law. See 183/620 Group Joint Venture v. SPF Joint Venture, 765 S.W.2d 901, 903 (Tex.
App.--Austin 1989, writ dism'd w.o.j.). We think such a situation exists in this case.
As general partner, Wallerstein has enormous latitude in how he conducts the
business affairs of the partnerships. Accordingly, he owes the other partners the highest fiduciary
duty recognized by law. Crenshaw v. Swenson, 611 S.W.2d 886, 890 (Tex. Civ. App.--Austin
1980, writ ref'd n.r.e.). The record shows that, by his own admissions, Wallerstein was self-dealing by using partnership funds for his own purposes. We do not agree with Wallerstein's
position that so long as the loans were repaid, the limited partners suffered no harm. A general
partner owes the partnership his loyalty and is not permitted to violate his duties for his own
benefit, even if his co-partners suffer no damages. See Crenshaw, 611 S.W.2d at 890.
Wallerstein insists that if he used partnership funds for purposes unrelated to the
partnership, the limited partners' remedy is monetary damages in the amount of any loss suffered.
While this remedy may be available, a trial court will not deny a request for a temporary
injunction unless the legal remedy is "as practical and efficient to the ends of justice as the
equitable remedy." See Jeter v. Associated Rack Corp., 607 S.W.2d 272, 278 (Tex. Civ.
App.--Texarkana 1980, writ ref'd n.r.e.). We applied this principle in SPF Joint Venture. In that
case, the project manager was entrusted with large sums of money which were to be expended for
improvements to the property. The project manager used the money for purposes outside the
contract, and the landowner requested that he be restrained from making any similar expenditures
pending a trial on the merits. We stated that, where a party has breached his fiduciary
responsibilities, "it is meaningless to require the applicant to demonstrate that his remedy at law
is inadequate" because a court at law cannot give a remedy in such cases. SPF Joint Venture, 765
S.W.2d at 903. Thus, we hold that the trial court did not abuse its discretion in enjoining
Wallerstein from any further breaches of his fiduciary responsibilities.
Wallerstein also attacks the temporary injunction by claiming that the limited
partners did not come to court with "clean hands" because they did not promptly seek to enforce
their contractual rights. While it is well settled that the party requesting equitable relief must
come to court with clean hands, it is within the discretion of the trial court to determine whether
the party has done so. Wynne v. Fischer, 809 S.W.2d 264, 267 (Tex. App.--Dallas 1991, writ
denied). The plaintiff comes to court with unclean hands if he is guilty of unlawful or inequitable
conduct with regard to the subject matter of the suit. Id. Moreover, the trial court should not
grant equitable relief if, in its judgment (1) the defendant will be seriously harmed by the other
party's actions, and (2) the wrong complained of cannot be corrected. See Rodgers v. Tracy, 242
S.W.2d 900, 905 (Tex. Civ. App.--Amarillo 1951, writ ref'd n.r.e.). We find nothing in the
record that leads us to conclude that the limited partners came to court with unclean hands, that
Wallerstein will be seriously harmed by the actions of the limited partners, or that any wrong
complained of cannot be corrected. Points of error numbers one, two and three are overruled.
In his fourth point of error, Wallerstein complains that the trial court erred in
granting injunctive relief because it disrupts the status quo. To preserve the status quo is to return
the subject of the litigation to the "last, actual, peaceable, non-contested status that preceded the
pending controversy." State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975).
We previously have stated that sometimes the status quo is a condition "not of rest, but of action."
See McMurrey Ref. Co. v. State, 149 S.W.2d 276, 279 (Tex. Civ. App.--Austin 1941, writ ref'd).
Just such a condition exists in this case. The last actual, peaceable, noncontested status was the
one that existed prior to Wallerstein assuming the property management responsibilities of the
Ridge. In other words, the status quo existed when the Republic Group managed the property and
the Ridge's funds were being used solely for partnership purposes. To restore this status quo, the
trial court ordered the appointment of an interim third-party management company to insure that
the Ridge operates smoothly and that rents are collected pending trial on the merits. Point of error
number four is overruled.
Contrary to Wallerstein's claim, the temporary injunction does not, in essence,
rewrite the partnership agreements; it merely attempts to maintain the status quo pending an
interpretation of those agreements. Wallerstein insists that he cannot be removed from his
position as general partner unless he fails to cure a material breach of the partnership agreements.
As we stated in Crenshaw, where a general partner breaches his fiduciary duty to the limited
partners, the court must take action to prevent further violation of that duty. Crenshaw, 611
S.W.2d at 891.
It is not enough that a defendant cease or promise to cease certain activity if the
trial court finds it necessary under the rules of equity to grant injunctive relief. Fan-Reed, Inc.
v. Upper Neches River Mun. Water Auth., 651 S.W.2d 356, 359 (Tex. App.--Tyler 1983, no writ).
The supreme court has held that injunctive relief may be granted where certain activities of a party
are deemed to be a settled course of conduct up to or near the time of trial. State v. Texas Pet
Foods, Inc., 591 S.W.2d 800, 804 (Tex. 1980). Moreover, it is within the discretion of the trial
court to assume that the same course of conduct will continue in the absence of convincing
evidence to the contrary. See State v. Texas Pet Foods, Inc., 591 S.W.2d at 804. Since the
record is devoid of any such convincing evidence, the trial court did not improperly assume that
Wallerstein's conduct would continue. Points of error numbers six and seven are overruled.
In his fifth point of error, Wallerstein contends that even if injunctive relief is
necessary, the relief granted goes beyond what was requested by the limited partners' pleadings.
We need not reach this point, however, since Wallerstein failed to preserve this complaint. To
preserve error, Wallerstein must have objected to or brought to the trial court's attention any non-conformance of the temporary injunction to the plaintiffs' pleadings. See Tex. R. App. P. 52(a).
There being no such evidence in the record, Wallerstein has waived his right to raise this point
of error on appeal. Point of error number five is overruled.
CONCLUSION
We hold that the trial court below did not abuse its discretion in issuing the
temporary injunction. We, therefore, affirm the order granting a temporary injunction.
Bea Ann Smith, Justice
[Before Justices Powers, Aboussie and B. A. Smith]
Affirmed
Filed: November 25, 1992
[Do Not Publish]
1. Joel Wallerstein was also joined in the original suit for allegedly aiding his father in
the acquisition of the $40,000 loan and failing to disclose the note on the balance and
operating statements of the Ridge; however, he is not a party to this appeal.
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IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-277-CV
PAUL D. McINNIS,
APPELLANT
vs.
H. G. COUNTS, TRUSTEE,
APPELLEE
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 11,057, HONORABLE D. V. HAMMOND, JUDGE
Paul McInnis appeals from the judgment rendered in a boundary-dispute suit with
his neighbor H. G. Counts. We will affirm the judgment.
THE CONTROVERSY
In 1978 McInnis purchased a city lot from Mr. and Mrs. Cloud. A hedge divided
McInnis's lot from an abutting lot to the north; the Clouds told McInnis that the hedge was the
boundary between the lots. In 1982 Counts purchased the abutting lot to the north. A survey
revealed that the true boundary between the two lots lay seven and one-half feet south of the
hedge. The McInnis house encroached slightly upon this seven and one-half foot strip, as did
several less substantial improvements.
Counts sued in 1987 for declaratory judgment establishing the boundary according
to the survey. McInnis sued in a counterclaim to recover prescriptive title to the strip under the
terms of the ten-year statute. Tex. Civ. Prac. & Rem. Code Ann. § 16.026 (West 1986). In its
final judgment, the trial court awarded Counts declaratory relief establishing the boundary
designated in the survey, ordered other relief not disputed on appeal, and ordered that McInnis
take nothing by his counterclaim.
The trial-court judgment rests upon a jury's verdict. Among other findings, the
jury concluded that McInnis and his predecessors in possession were in actual possession of the
disputed strip of land, continuously using it, and exercising dominion over it as if it were theirs
exclusively, all for a period in excess of ten years before suit was filed. However, the jury
declined to find from a preponderance of the evidence that the successive owners claimed title to
the strip "adversely" to anyone else, an essential finding in a prescriptive-title claim under
section 16.026.
McInnis appeals from the trial-court judgment on the single point of error that he
established as a matter of law a prescriptive title under section 16.026.
DISCUSSION AND HOLDINGS
McInnis argues the evidence was conclusive on the essential fact the jury declined
to find--that his nine years of possession of the disputed strip, when joined with the Clouds' last
year of possession, amounted to ten years of "adverse possession" when Counts interrupted that
possession by his suit. Unless the evidence shows conclusively that the Clouds' possession
constituted "adverse possession," McInnis's appeal fails. (1)
To constitute "adverse possession," a claimant's "actual and visible appropriation"
must be "commenced and continued under a claim of right that is inconsistent with and is hostile
to the claim of another person." Tex. Civ. & Rem. Code Ann. § 16.021(1) (West 1986)
(emphasis added). The claim of right may be communicated by actual notice to the other person.
There is no evidence of such notice in the present case. In other instances, the notice may be
communicated by constructive notice to the other person. This occurs when the claimant's acts
of dominion over the land are sufficiently pronounced, hostile, and inconsistent to charge the other
person with constructive notice that the acts are taken under a claim of right. Nona Mills Co. v.
Wright, 102 S.W. 1118 (Tex. 1907). In either case, the acts of dominion must be taken under a
claim of right. It is on this point that McInnis fails in his contention that the evidence established
adverse possession as a matter of law.
Mr. and Mrs. Cloud described in their testimony their various acts of dominion
over the disputed strip. They testified, however, that their acts were taken in a belief that the
hedge corresponded to their legal boundary and that they never intended to claim any part of the
anyone else's property but only the property that was theirs. The evidence is undisputed that the
hedge did not in fact correspond to the legal boundary, fixed in the various owners' respective
deeds; the legal boundary lay instead seven and one-half feet south of the hedge and along the line
described in the 1982 survey.
We believe the decision in Ellis v. Jansing, 620 S.W.2d 569, 571-72 (Tex. 1981)
controls McInnis's contention on appeal. There, as here, the claimant under the ten-year statute
was obliged to rely upon the possession of his immediate predecessor in possession. The
predecessor exercised dominion over a narrow strip in a mistaken belief that a retaining wall
corresponded to the legal boundary fixed in his deed and, he testified, he never intended to claim
land other than that described in his deed. The court held his testimony defeated as a matter of
law an intention to claim the strip adversely to the true owner, saying "[n]o matter how exclusive
and hostile to the true owner the possession may be in appearance, it cannot be adverse unless
accompanied by the intent to make it so." Id. Thus, if one assumes the Clouds' acts of possession
were sufficiently pronounced and hostile to imply they were taken under a claim of right hostile
to that of the record owner, their own testimony defeats that implication as a matter of law
because they stated they did not intend to claim property outside that described in their deed.
Simply stated, such testimony established that the acts were taken under a mistake and not under
a claim of right.
Jansing had been criticized in this respect. See Judson T. Tucker, Adverse
Possession in Mistaken Boundary Cases, 43 Baylor L. Rev. 389, 400-405 (1991). We are
nevertheless obliged, of course, to follow the decision. We hold accordingly.
Under his single point of error, McInnis urges certain other arguments to the effect
that the jury's answers to questions 3, 4, 5, and 6 established conclusively his claim of adverse
possession; and the jury's failure to find that his claim was "adverse" is in conflict with the jury's
answers to these other special issues.
McInnis argues the following: Counts and his predecessors in title treated the
property south of the hedge as belonging to McInnis, and there is no evidence that McInnis used
the strip with their permission; no other evidence controverts McInnis's claim of adverse
possession; and the jury's answer to question number 5 established that the various owners of the
lot north of the hedge were uncertain, before 1978, concerning the exact location of the boundary
in question. These are immaterial. McInnis was bound to recover on his claim, if at all, by
establishing the elements necessary to recover under the ten-year statute. The burden of adducing
evidence lay upon him, not upon the record owner.
The jury's answers to qeustions 3, 4, and 6 are similarly immaterial. These
establish the following: Counts had notice of McInnis's possession and occupancy of the strip
when Counts purchased his lot; Counts knew of the encroachments upon the narrow strip when
he purchased his lot; and Counts waived the right to complain of any encroachments upon the
narrow strip because he purchased his lot with knowledge of the encroachments, then sold and re-purchased the lot without reference to them. These answers are immaterial for several reasons.
We shall mention only one--they do not refer to the Clouds' acts of adverse possession which
McInnis had to establish because his own possession encompassed only nine years.
We hold accordingly and overrule the point of error.
Finding no error, we affirm the trial-court judgment.
John Powers, Justice
[Before Justices Powers, Aboussie and Kidd]
Affirmed
Filed: October 21, 1992
[Do Not Publish]
1. McInnis is obliged to rely upon the Clouds' possession because he first entered into
possession of the disputed strip when he purchased his lot in 1978. Such "tacking" of a
predecessor's possession is, of course, expressly authorized by Tex. Civ. Prac. & Rem. Code
Ann. § 16.023 (West 1986).
It would be immaterial that a prescriptive claim matured before McInnis entered into
possession in 1978. A matured prescriptive claim may be conveyed only by written instrument.
See Dale v. Stringer, 570 S.W.2d 414, 416 (Tex. Civ. App.--Texarkana 1978, writ ref'd n.r.e.)
and authorities cited therein.
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292 S.W.2d 77 (1956)
ARKANSAS STATE HIGHWAY COMMISSION, Appellant,
v.
Vance CLAYTON, State Treasurer, et al., Appellees.
No. 5-1075.
Supreme Court of Arkansas.
July 2, 1956.
*78 W. R. Thrasher and Dowell Anders, Little Rock, for appellant.
Tom Gentry, Atty. Gen., and James L. Sloan, Chief Asst. Atty. Gen., for appellees.
ROBINSON, Justice.
Act No. 248 of the Acts of the General Assembly of Arkansas for 1951 provides for participation by employees of the State ancj its political subdivisions in the benefits provided by the federal Social Security Act, 42 U.S.C.A. § 301 et seq. Employees of the State Highway Department, in accordance with Act No. 427 of 1955, elected to participate in the social security program. The State Comptroller fixed January 1, 1955 as the effective date rif coverage of the employees by the Social Security Act. The Highway Commission did not agree with the 1955 date, and fixed the date as January 1, 1956. The Comptroller insisted on January 1, 1955, and the Commissioners filed this action to enjoin the State Treasurer and State Comptroller from using Highway funds in connection with participating in social security coverage.
The-facts are stipulated as follows: "It is hereby agreed-by the parties hereto that: (1) That under the authority of Act 427, Ark. Acts of 1955, the employees of the State Highway Department did on November 14, 1955 hold a referendum on the question of whether they should be excluded or included under an agreement between the State and the Federal Government authorized by Act 248, Ark.Acts of 1951 which extended to State Employees Social Security coverage. The result of the referendum was that the employees favored Social Security coverage.
"(2) On December 29, 1955, the Govern-6r executed his certificate to the Secretary of Health, Education and Welfare as to the results of the election as provided by Sec. 2(b) of Act 427 of 1955.
"(3) On January 3, 1956 a printed form, dated December 30, 1955, called `Agreement' and executed by the State Comptroller as the `State Agency' was received by the Highway Department from the State Comptroller with instructions that said agreement was to be executed by the Contracting Officer for the Arkansas State Highway Department for the purpose of extending Social Security coverage to the Highway Department employees. Item `J' on said agreement fixed the effective date of the agreement and was received by the Highway Department, with the effective date typed thereon as `January 1, 1955'.
"(4) On January 4, 1956, the Director of the Highway Department replied to the State Comptroller's letter saying that the subject of the agreement would be submitted to the Highway Commission at its next meeting on January 25, 1956, and indicating that the January 1, 1955, effective date might not be acceptable.
"(5) On January 5, 1956 Modification No. 124 to the Arkansas State Social Security Agreement was approved for the State of Arkansas by the State Comptroller and then submitted to the Secretary of Health, Education and Welfare to extend Social Security Coverage to the Arkansas State Highway Department employees with the effective date thereon as January 1, 1955. This modification is shown as approved by the Federal Agency on January 27, 1956.
"(6) On January 25, 1956, the State Highway Commission, by Minute Order No. 1257, authorized the State Highway Director to enter into an agreement with the State Comptroller to extend Social Security coverage to Highway Department *79 employees and fixed the effective date as January 1, 1956.
"(7) On January 26, 1956 the `Agreement' was returned to the State Comptroller with Item `J' the effective date thereon `January 1, 1955' being struck out arid the date `January 1, 1956' inserted."
The defendants demurred; the demurrer was sustained, and the Highway Commissioners have appealed.
Act No. 248 of 1951 designates the State Comptroller as the "stater agency", and Section 3(a) of the act provides:. "The State Agency, with the approval of the Governor, is hereby authorized to enter on behalf of the State into an agreement with the Federal Security, Administrator, consistent with the terms and provisions of this Act, for the purpose of extending the benefits of the Federal old-age and survivors insurance system to employees of the State or any political subdivision thereof with respect to services specified in such agreement which constitute `employment' as defined in Section 2 of this Act. Such agreement may contain such provisions relating'to coverage, benefits, contributions, effective date, modification and termination of the agreement, administration, and other appropriate provisions as the State Agency and Federal Security'Administrator shall agree upon, but, except as may be otherwise required by or under the Social Security Act as to the services to be covered, such agreement shall provide in effect that: * * *." It is clear that Act 248 gives the Comptroller authority, with approval of the Governor, to enter into an agreement with the federal security administrator as to the effective date of coverage of the employees of the Stateor any of its political subdivisions.
Appellants contend that the Highway Department is a political subdivision of the State, and that, under Section 5(a) of Act 248, the Comptroller is compelled to approve the date submitted by the political subdivision, and, further, that the Comptroller, under Section 5(b), has no authority to change the date selected by the Highway Commissioners. Section 2(f) of Act 248 defines a political subdivision as follows':; "The term `political subdivision' includes an instrumentality of a State, or one or more of its political subdivisions, or of a State and one or more of its political sub-r divisions, but only if such instrumentality ift: a juristic entity which is legally separate and distinct from the State or subdivision: and only if its employees are not by virtue of their relation to such juristic entity employees of: the State or /subdivision." The Highway Departmentiis not a juristic1 entity, and; furthermore, Highway Department employees are employees of the States Moreover, political subdivisions jjave been defined as that `"they embrace a certain territory arid its inhabitants, organized for the public advantage'and not in the interest of particular individuals or classes; that their chief design is the exercise of governmental functions; and that to the electors residing within each is to some extent committed the power of local government, to be wielded either mediately or immediately within their territory for the peculiar benefit `of the' people there residing.'" Allison v. Corker, 67 N.J.L. 596, 52 A. 362, 365, 60 L.R.A. 564.
It is also contended by appellants that Amendment No. 42 to the Constitution of Arkansas makes the Highway Department a political subdivision. The amendment creates the Highway Commission and provides for the appointment of Commissioners by the Governor. It defines the duties of the Commissioners and fixes their terms of office. But in no way does the amendment make the Highway Department a political subdivision of the State. Employees of the Highway Department are employees of the State of Arkansas, as distinguished from employees of a political subdivision of the State; their salaries are paid by the State Treasurer on *80 warrants prepared and signed by the State Auditor.
Appellants further contend that the coverage for the employees cannot be made retroactive to January 1, 1955 for the reason that to do so would require the payment by the State, of an obligation from a prior biennium, from the current biennium appropriation. The appropriation that is being spent at present is for the 1955-57 biennium. The State's obligation to the federal government did not become due until January 27, 1956. By Act 220 of 1955 the General Assembly appropriated $1,500,000 to carry out requirements of the federal Social Security Act. Hence, the payment which became due January 27, 1956 was in the present biennium.
The court's decree sustaining the demurrer is correct, and is therefore affirmed.
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https://www.courtlistener.com/api/rest/v3/opinions/1514585/
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525 S.W.2d 711 (1975)
Larry Julian BLACKMON, Appellant,
v.
Patricia Louise BLACKMON, Appellee.
No. 16553.
Court of Civil Appeals of Texas, Houston (1st Dist.)
July 31, 1975.
*712 Vern J. Thrower, K. D. Keenan, Houston, for appellant.
Anthony L. Vetrano, Jr., Houston, for appellee.
EVANS, Justice.
This involves a motion to suspend two orders entered by the Court of Domestic Relations No. 1 filed pursuant to the provisions of Section 11.19(c) of the Texas Family Code, V.T.C.A., which provides:
"An appeal from an order, judgment, or decree, with or withouta supersedeas bond, does not suspend the order, decree, or judgment unless suspension is ordered by the court entering the order, decree, or judgment. The appellate court, on a proper showing, may permit the order, decree, or judgment to be suspended."
The record reflects that appellant, Larry Julian Blackmon, and appellee, Patricia Louise Blackmon, were divorced on July 17, 1972 in Cause No. 906672. Under such decree Patricia Blackmon was granted custody of their minor child, Jennifer Dawn Blackmon.
On September 17, 1974 Patricia Blackmon filed habeas corpus action (Cause No. 997102) seeking return of the child to her and on October 4, 1974 the court by docket sheet entry ordered the return of the child to her by 12:00 noon on October 5, 1974. A written order to this effect was subsequently signed and entered on January 3, 1975. On April 2, 1975 the trial court by interlineation *713 of this order and by docket sheet entry purported to amend the order so as to require compliance by return of the child on April 4, 1975 at 5:00 o'clock p. m.
On September 17, 1974, the same date the above mentioned action was filed, a separate action to modify custody was instituted by Larry Blackmon in the same court (Cause No. 997045). By order dated November 18, 1974 and entered November 26, 1974, Larry Blackmon was appointed managing conservator of the child and Patricia Blackmon was appointed possessory conservator with further provision that she was not to be entitled to visitation for six months after the child had been returned to Larry Blackmon and not at that time until further orders of the court. This order recited that Patricia Blackmon though duly and properly served with citation failed to enter her appearance on the matter.
On April 1, 1975 Patricia Blackmon filed her petition in this proceeding (Cause No. 1020274) for writ of habeas corpus, asserting that she was entitled to have the child returned to her under the provisions of the divorce decree. To this petition Larry Blackmon responded with a so-called plea in abatement, asserting among other grounds, that the issues raised by the petition had been adjudicated and determined by the court's order of November 18, 1974. On the basis of this pleading the court on April 4, 1975 dismissed the cause on the stated ground that it did not have jurisdiction.
On April 11, 1975 Larry Blackmon filed a motion in Cause No. 1020274 seeking to set aside the order dated October 4, 1974 (in Cause No. 997,102) which had been entered on January 3, 1975 and which, as amended by interlineation, required return of the child on April 4, 1975. Among other grounds Larry Blackmon asserted in this motion that the trial court lacked authority to amend or modify the terms of the order since more than thirty days had elapsed since the date of its rendition and/or entry, and that the court's dismissal of the cause (No. 1020274) on April 4, 1975 precluded any further action in the case. On May 22, 1975 the motion to set aside was overruled and this appeal was taken from that action of the trial court. During the pendency of this appeal appellant filed motion to suspend the order appealed from pursuant to Section 11.19(c) of the Texas Family Code. On May 30, 1975 we denied this motion.
On May 30, 1975, during the pendency of this appeal, the trial court entered an order purporting to reinstate this cause (No. 1020274) on its docket. By separate order also entered on May 30, 1975, the trial court ordered Larry Blackmon to return the child to Patricia Blackmon on June 1, 1975. It is these two orders which Larry Blackmon now seeks to have suspended pending this appeal.
Both of the orders which movant here seeks to have suspended were entered in the same proceedings (No. 1020274) as the order appealed from but subsequent to the date of that order. Both orders relate to the same subject matter as the order on appeal.
Pending an appeal the trial court is without authority to take any action in a case which disturbs the status quo of the matters on appeal. Cureton v. Robbins, 319 S.W.2d 735 (Tex.Civ.App.San Antonio, 1958, writ dism'd). The two orders in question are therefore without effect insofar as they may interfere with the appellate function of this court in considering the rights of the parties under the state of the record as it existed at the time the appeal was perfected. However Section 11.19(c) of the Texas Family Code pertains only to the suspension of orders and decrees which are the subject matter of an existing appeal. This section does not, in our opinion, provide a basis for the suspension of an order which is subsequently entered in the same proceeding, even though the lower court may have lacked authority to enter such an order. Therefore, we deny the motion to suspend.
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